EXECUTION COPY
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GMAC MORTGAGE CORPORATION
as Servicer,
GMACM HOME EQUITY LOAN TRUST 2004-HE5,
as Issuer
and
▇▇▇▇▇ FARGO BANK, N.A.
as Indenture Trustee
________________________________________
SERVICING AGREEMENT
Dated as of November 30, 2004
________________________________________
GMACM HOME EQUITY LOAN TRUST 2004-HE5 GMACM Home
Equity Loan-Backed Certificates, Series 2004-HE5
GMACM Home Equity Loan-Backed Term Notes, Series 2004-HE5
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions...............................................................1
Section 1.01 Definitions.......................................................1
Section 1.02 Other Definitional Provisions.....................................1
Section 1.03 Interest Calculations.............................................2
ARTICLE II Representations and Warranties............................................2
Section 2.01 Representations and Warranties Regarding the Servicer.............2
Section 2.02 Representations and Warranties of the Issuer......................3
Section 2.03 Enforcement of Representations and Warranties.....................4
ARTICLE III Administration and Servicing of Mortgage Loans............................5
Section 3.01 The Servicer......................................................5
Section 3.02 Collection of Certain Mortgage Loan Payments......................8
Section 3.03 Withdrawals from the Custodial Account...........................10
Section 3.04 Maintenance of Maintenance of Hazard Insurance; Property
Protection Expenses..............................................12
Section 3.05 Modification Agreements; Release of Lien.........................13
Section 3.06 Trust Estate; Related Documents..................................13
Section 3.07 Realization Upon Defaulted Mortgage Loans; Loss Mitigation.......14
Section 3.08 Issuer and Indenture Trustee to Cooperate........................16
Section 3.09 Servicing Compensation; Payment of Certain Expenses by
Servicer.........................................................17
Section 3.10 Annual Statement as to Compliance................................18
Section 3.11 Annual Servicing Report..........................................18
Section 3.12 Access to Certain Documentation and Information Regarding
the Mortgage Loans...............................................18
Section 3.13 Maintenance of Certain Servicing Insurance Policies..............19
Section 3.14 Information Required by the Internal Revenue Service and
Reports of Foreclosures and Abandonments of Mortgaged
Property.........................................................19
Section 3.15 Optional Repurchase or Transfer of Mortgage Loans................19
Section 3.17 Pre-Funding Account..............................................21
Section 3.18 Capitalized Interest Account.....................................23
Section 3.19 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.....................24
ARTICLE IV Servicing Certificate....................................................25
Section 4.01 Statements to Securityholders....................................25
Section 4.02 Tax Returns and 1934 Act Reports.................................27
ARTICLE V Note Payment Account.....................................................28
Section 5.01 Note Payment Account.............................................28
ARTICLE VI The Servicer.............................................................29
Section 6.01 Liability of the Servicer........................................29
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer.................................................29
Section 6.03 Limitation on Liability of the Servicer and Others...............29
Section 6.04 Servicer Not to Resign...........................................30
Section 6.05 Delegation of Duties.............................................31
Section 6.06 Payment of Indenture Trustee's and Owner Trustee's Fees and
Expenses; Indemnification........................................31
ARTICLE VII Default..................................................................32
Section 7.01 Servicing Default................................................32
Section 7.02 Indenture Trustee to Act; Appointment of Successor...............33
Section 7.03 Notification to Securityholders..................................35
ARTICLE VIII Miscellaneous Provisions.................................................36
Section 8.01 Amendment........................................................36
Section 8.02 GOVERNING LAW....................................................36
Section 8.03 Notices..........................................................36
Section 8.04 Severability of Provisions.......................................36
Section 8.05 Third-Party Beneficiaries........................................37
Section 8.06 Counterparts.....................................................37
Section 8.07 Effect of Headings and Table of Contents.........................37
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of
All Mortgage Loans; Partial Redemption...........................37
Section 8.09 Certain Matters Affecting the Indenture Trustee..................38
Section 8.10 Owner Trustee Not Liable for Related Documents...................38
EXHIBIT A - MORTGAGE LOAN SCHEDULE A-1
EXHIBIT B - LIMITED POWER OF ATTORNEY.....................................................B-1
EXHIBIT C - FORM OF REQUEST FOR RELEASE...................................................C-1
EXHIBIT D-1 - FORM OF 10-K CERTIFICATION................................................D-1-1
EXHIBIT D-2 - FORM OF BACK-UP CERTIFICATION
TO FORM 10-K CERTIFICATE.........................................................D-2-1
This Servicing Agreement, dated as of November 30, 2004 (the
"Agreement"), is among GMAC Mortgage Corporation, as servicer (the "Servicer"),
the GMACM Home Equity Loan Trust 2004-HE5, as issuer (the "Issuer"), and ▇▇▇▇▇
Fargo Bank, N.A., as indenture trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, pursuant to the terms of the Purchase Agreement (as defined
herein), GMAC Mortgage Corporation, as seller (in such capacity, "GMACM") and as
servicer and Walnut Grove Mortgage Loan Trust 2003-A, as seller ("WG Trust" and
together with GMACM, the "Sellers"), will sell to Residential Asset Mortgage
Products, Inc. ("RAMP"), as purchaser (in such capacity, the "Purchaser"), the
Initial Mortgage Loans on the Closing Date, and may sell Subsequent Mortgage
Loans on one or more Subsequent Transfer Dates, in each case together with the
Related Documents on the Closing Date and any Subsequent Transfer Date;
WHEREAS, RAMP, as depositor (in such capacity, the "Depositor"), will
sell the Initial Mortgage Loans and assign all of its rights under the Purchase
Agreement to the Issuer, together with the Related Documents on the Closing
Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue
the Notes; and
WHEREAS, pursuant to the terms of this Agreement, the Servicer will
service the Mortgage Loans directly or through one or more Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the indenture dated
as of November 30, 2004 (the "Indenture"), between the Issuer and the Indenture
Trustee, which is incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document,
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; Section and Exhibit references contained
in this Agreement are references to Sections and Exhibits in or to this
Agreement unless otherwise specified; the term "including" shall mean "including
without limitation"; "or" shall include "and/or"; and the term "proceeds" shall
have the meaning ascribed thereto in the UCC.
(d) The definitions contained in this Agreement are applicable to the singular
as well as the plural forms of such terms and to the masculine as well as the
feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
Section 1.03 Interest Calculations. All calculations of interest hereunder that
are made in respect of the Principal Balance of a Mortgage Loan shall be made on
a daily basis using a 365-day year. All calculations of interest on the Notes,
other than the Class A-1 Notes, and the calculation of the Servicing Fee shall
be made on the basis of a 360-day year consisting of twelve 30-day months. The
calculation of interest on the Class A-1 Notes shall be made on the basis of the
actual number of days in an Interest Period and a year assumed to consist of 360
days. All dollar amounts calculated hereunder shall be rounded to the nearest
▇▇▇▇▇ with one-half of one ▇▇▇▇▇ being rounded up.
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the Servicer. The Servicer
represents and warrants to the Issuer and for the benefit of the Indenture
Trustee, as pledgee of the Mortgage Loans, as of the Closing Date:
(a) the Servicer is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power to own its assets and to transact the business in which it is
currently engaged. The Servicer is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the character
of the business transacted by it or properties owned or leased by it requires
such qualification and in which the failure to so qualify would have a material
adverse effect (not in the ordinary course of business) on the business,
properties, assets, or condition (financial or other) of the Servicer;
(b) the Servicer has the power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated under this
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Servicing Agreement will constitute the legal, valid and binding
obligation of the Servicer enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(c) the Servicer is not required to obtain the consent of any other Person or
any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or filed, as the case
may be;
(d) the execution and delivery of this Agreement and the performance of the
transactions contemplated hereby by the Servicer will not violate any material
provision of any existing law or regulation or any order or decree of any court
applicable to the Servicer or any provision of the Articles of Incorporation or
Bylaws of the Servicer, or constitute a material breach of any material
mortgage, indenture, contract or other agreement to which the Servicer is a
party or by which the Servicer may be bound;
(e) no litigation or administrative proceeding of or before any court, tribunal
or governmental body is currently pending, or to the knowledge of the Servicer
threatened, against the Servicer or any of its properties or with respect to
this Agreement or the Securities which in the opinion of the Servicer has a
reasonable likelihood of resulting in a material adverse effect on the
transactions contemplated by this Agreement;
(f) the Servicer is a member of MERS in good standing, and will comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS; and
(g) the servicing of the Mortgage Loans has at all times been conducted in
material compliance with all applicable federal, state and local laws, rules and
regulations and there has been no material violation of any such laws, rules or
regulations arising out of the servicing of the Mortgage Loans.
The foregoing representations and warranties shall survive any
termination of the Servicer hereunder.
Section 2.02 Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Servicer and for the benefit of the Indenture
Trustee, as pledgee of the Mortgage Loans, as of the Closing Date:
(a) the Issuer is a statutory trust duly formed and in good standing under the
laws of the State of Delaware and has full power, authority and legal right to
execute and deliver this Agreement and to perform its obligations under this
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement; and
(b) the execution and delivery by the Issuer of this Agreement and the
performance by the Issuer of its obligations under this Agreement will not
violate any provision of any law or regulation governing the Issuer or any
order, writ, judgment or decree of any court, arbitrator or governmental
authority or agency applicable to the Issuer or any of its assets. Such
execution, delivery, authentication and performance will not require the
authorization, consent or approval of, the giving of notice to, the filing or
registration with, or the taking of any other action with respect to, any
governmental authority or agency regulating the activities of limited liability
companies. Such execution, delivery, authentication and performance will not
conflict with, or result in a breach or violation of, any mortgage, deed of
trust, lease or other agreement or instrument to which the Issuer is bound.
Section 2.03 Enforcement of Representations and Warranties. The Servicer, on
behalf of and subject to the direction of the Indenture Trustee, as pledgee of
the Mortgage Loans, or the Issuer, shall enforce the representations and
warranties of GMACM or WG Trust pursuant to the Purchase Agreement. Upon the
discovery by the Sellers, the Depositor, the Servicer, the Indenture Trustee,
the Enhancer, the Issuer, or the Custodian of a breach of any of the
representations and warranties made by either GMACM or WG Trust in the Purchase
Agreement, in respect of any Mortgage Loan which materially and adversely
affects the interests of the Securityholders or the Enhancer, the party
discovering such breach shall give prompt written notice to the other parties
(the Custodian being so obligated under the Custodial Agreement). The Servicer
shall promptly notify either GMACM or WG Trust, as applicable, of such breach
and request that, pursuant to the terms of the Purchase Agreement, the
respective party either (i) cure such breach in all material respects within 90
days from the date such party was notified of such breach, or in the case of a
breach which has the effect of making the Mortgage Loan fail to be a "qualified
mortgage" within the meaning of Section 860G of the Internal Revenue Code,
within 90 days after the discovery thereof by the Sellers, the Depositor, the
Servicer, the Indenture Trustee, the Issuer or the Purchaser or (ii) purchase
such Mortgage Loan from the Issuer at the price and in the manner set forth in
Section 3.1(e) of the Purchase Agreement; provided, that either GMACM or WG
Trust shall, subject to the conditions set forth in the Purchase Agreement, have
the option to substitute an Eligible Substitute Loan or Loans for such Mortgage
Loan, provided that such substitution occurs within two years following the
Closing Date. In the event that either GMACM or WG Trust elects to substitute
one or more Eligible Substitute Loans pursuant to Section 3.1(e) of the Purchase
Agreement, such party shall deliver to the Custodian or the Servicer, in
accordance with the Purchase Agreement, with respect to such Eligible Substitute
Loans, the original Mortgage Note, the Mortgage, and such other documents and
agreements as are required by the Purchase Agreement. Payments due with respect
to Eligible Substitute Loans in the month of substitution shall not be
transferred to the Issuer and will be retained by the Servicer and remitted by
the Servicer to such party on the next succeeding Payment Date except to the
extent that a payment less than the applicable Monthly Payment has been received
by the Issuer for such month in respect of the Mortgage Loan to be removed. The
Servicer shall amend or cause to be amended the Mortgage Loan Schedule to
reflect the removal of such Mortgage Loan and the substitution of the Eligible
Substitute Loans and the Servicer shall promptly deliver the amended Mortgage
Loan Schedule to the Owner Trustee and Indenture Trustee.
It is understood and agreed that the obligation of GMACM and WG Trust to
cure such breach or purchase or substitute for such Mortgage Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Issuer and the Indenture Trustee, as
pledgee of the Mortgage Loans, against either GMACM or WG Trust. In connection
with the purchase of or substitution for any such Mortgage Loan by either GMACM
or WG Trust, the Issuer shall assign to such party all of its right, title and
interest in respect of the Purchase Agreement applicable to such Mortgage Loan.
Upon receipt of the Repurchase Price, or upon completion of such substitution,
the Servicer shall notify the Custodian, and the Custodian shall deliver the
Mortgage Notes to the Servicer, together with all relevant endorsements and
assignments prepared by the Servicer that the Indenture Trustee shall execute.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 The Servicer.
(a) The Servicer shall service and administer the Mortgage Loans in a manner
generally consistent with the terms of the Program Guide and in a manner
consistent with the terms of this Agreement and that shall be normal and usual
in its general mortgage servicing activities and consistent with the manner in
which it services all other Mortgage Loans in its servicing portfolio with
characteristics similar to those of the Mortgage Loans. The Servicer shall have
full power and authority, acting alone or through a Subservicer, to do any and
all things in connection with such servicing and administration which it may
deem necessary or desirable, it being understood, however, that the Servicer
shall at all times remain responsible to the Issuer and the Indenture Trustee,
as pledgee of the Mortgage Loans, for the performance of its duties and
obligations hereunder in accordance with the terms hereof and the Program Guide.
Without limiting the generality of the foregoing, the Servicer shall continue,
and is hereby authorized and empowered by the Issuer and the Indenture Trustee,
as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself,
the Issuer, the Indenture Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments with respect to the Mortgage Loans and the
Mortgaged Properties. The Issuer, the Indenture Trustee and the Custodian, as
applicable, shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. In addition, the Servicer may, at
its own discretion and on behalf of the Indenture Trustee, obtain credit
information in the form of a "credit score" from a credit repository. On the
Closing Date, the Indenture Trustee shall deliver to the Servicer a limited
power of attorney substantially in the form of Exhibit B hereto. The Servicer is
further authorized and empowered by the Issuer and the Indenture Trustee, on
behalf of the Noteholders and the Indenture Trustee, in its own name or in the
name of the Subservicer, when the Servicer or the Subservicer, as the case may
be, believes it appropriate in its best judgment to register any Mortgage Loan
on the MERS(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Indenture Trustee and the Noteholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Indenture Trustee and its successors and assigns. The Indenture Trustee shall
have no ongoing responsibility to check the status of the Mortgage Loans on the
MERS(R) System. Any expenses incurred in connection with the actions described
in the preceding sentence shall be borne by the Servicer, with no right of
reimbursement.
Notwithstanding the foregoing, subject to Section 3.02(a), the Servicer
shall not permit any modification with respect to any Mortgage Loan that would
both constitute a sale or exchange of such Mortgage Loan within the meaning of
Section 1001 of the Code and any proposed, temporary or final regulations
promulgated thereunder and cause any REMIC to fail to qualify as a REMIC under
the Code or, except as provided in Section 11.01(f) of the Indenture, cause the
imposition of a tax upon any of the REMICs (including but not limited to the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code).
Subject to Section 3.15(b), if the Mortgage did not have a Lien senior
to the related Mortgage Loan on the related Mortgaged Property as of the related
Cut-Off Date, then the Servicer, in such capacity, may not consent to the
placing of a Lien senior to that of the Mortgage on the related Mortgaged
Property. Subject to Section 3.15(b), if the Mortgage had a Lien senior to the
related Mortgage Loan on the related Mortgaged Property as of the related
Cut-Off Date, then the Servicer, in such capacity, may not consent to the
refinancing of such prior senior Lien, unless (i) the resulting CLTV of such
Mortgage Loan is no higher than the greater of the CLTV prior to such
refinancing or a 70% CLTV (or a 80% CLTV for those borrowers with a FICO "credit
score" of 720 or greater) and (ii) the interest rate for the loan evidencing the
refinanced senior Lien is no higher than the interest rate on the loan
evidencing the existing senior Lien immediately prior to the date of such
refinancing (meaning, in the case of an adjustable rate loan, a substantially
similar index and a gross margin no higher than that of the existing senior
Lien); provided, however, that if the loan evidencing the existing senior Lien
prior to the date of refinancing is an adjustable rate loan and the loan
evidencing the refinanced senior Lien is a fixed rate loan, then the interest
rate on the loan evidencing the refinanced senior Lien may be up to 2.0% higher
than the then-current mortgage rate of the loan evidencing the existing senior
Lien and (iii) the loan evidencing the refinanced senior Lien is not subject to
negative amortization.
In connection with servicing the Mortgage Loans, the Servicer may take
reasonable actions to encourage or effect the termination of Mortgage Notes that
have become dormant.
The relationship of the Servicer (and of any successor to the Servicer
as servicer under this Agreement) to the Issuer under this Agreement is intended
by the parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
(b) The Servicer may enter into Subservicing Agreements with Subservicers for
the servicing and administration of certain of the Mortgage Loans. The Servicer
shall provide notice to the Indenture Trustee upon entering into a Subservicing
Agreement. References in this Agreement to actions taken or to be taken by the
Servicer in servicing the Mortgage Loans include actions taken or to be taken by
a Subservicer on behalf of the Servicer and any amount actually received by such
Subservicer in respect of a Mortgage Loan shall be deemed to have been received
by the Servicer whether or not actually received by the Servicer. Each
Subservicing Agreement will be upon such terms and conditions as are not
inconsistent with this Agreement and as the Servicer and the Subservicer have
agreed. With the approval of the Servicer, a Subservicer may delegate its
servicing obligations to third-party servicers, but such Subservicers will
remain obligated under the related Subservicing Agreements. The Servicer and the
Subservicer may enter into amendments to the related Subservicing Agreements;
provided, however, that any such amendments shall not cause the Mortgage Loans
to be serviced in a manner that would be materially inconsistent with the
standards set forth in this Agreement. The Servicer shall be entitled to
terminate any Subservicing Agreement in accordance with the terms and conditions
thereof and without any limitation by virtue of this Agreement; provided,
however, that in the event of termination of any Subservicing Agreement by the
Servicer or the Subservicer, the Servicer shall either act as servicer of the
related Mortgage Loan or enter into a Subservicing Agreement with a successor
Subservicer which will be bound by the terms of the related Subservicing
Agreement. The Servicer shall be entitled to enter into any agreement with a
Subservicer for indemnification of the Servicer and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification.
In the event that the rights, duties and obligations of the
Servicer are terminated hereunder, any successor to the Servicer in its sole
discretion may, to the extent permitted by applicable law, terminate the
existing Subservicing Agreement with any Subservicer in accordance with the
terms of the applicable Subservicing Agreement or assume the terminated
Servicer's rights and obligations under such subservicing arrangements which
termination or assumption will not violate the terms of such arrangements.
As part of its servicing activities hereunder, the Servicer, for
the benefit of the Indenture Trustee, the Enhancer and the Securityholders,
shall use reasonable efforts to enforce the obligations of each Subservicer
under the related Subservicing Agreement, to the extent that the non-performance
of any such obligation would have a material adverse effect on a Mortgage Loan.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Subservicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Servicer, in its good faith business judgment, would
require were it the owner of the related Mortgage Loans. The Servicer shall pay
the costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement to the
extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loan or (ii) from a specific recovery of costs, expenses or
attorneys fees against the party against whom such enforcement is directed.
(c) All other documents contained in the Mortgage File and any original
documents relating to the Mortgage Loans not contained in the Mortgage File or
delivered to the Custodian, if any, or the Indenture Trustee are and shall be
held by the Servicer in trust as agent for the Indenture Trustee on behalf of
the Noteholders.
Section 3.02 Collection of Certain Mortgage Loan Payments
(a) The Servicer shall make reasonable efforts to collect all payments called
for under the terms and provisions of the Mortgage Loans, and shall, to the
extent such procedures shall be consistent with this Agreement and generally
consistent with the Program Guide, follow such collection procedures as shall be
normal and usual in its general mortgage servicing activities and consistent
with the procedures the Servicer employs in servicing all other Mortgage Loans
in the servicing portfolio with characteristics similar to those of the Mortgage
Loans. Consistent with the foregoing, and without limiting the generality of the
foregoing, the Servicer may in its discretion (i) waive any late payment charge,
penalty interest or other fees which may be collected in the ordinary course of
servicing a Mortgage Loan and (ii) arrange with a Mortgagor a schedule for the
payment of principal and interest due and unpaid; provided, that such
arrangement is consistent with the Servicer's policies with respect to home
equity mortgage loans; and provided further, that notwithstanding such
arrangement, such Mortgage Loans will be included in the information regarding
delinquent Mortgage Loans set forth in the Servicing Certificate. The Servicer
may also extend the Due Date for payment due on a Mortgage Loan in accordance
with the Program Guide; provided, however, that the Servicer shall first
determine that any such waiver or extension will not impair the coverage of any
related insurance policy or materially adversely affect the Lien of the related
Mortgage or the interests of the Securityholders or the Enhancer and the
Servicer shall not grant any such waiver or extension that would have any such
effect. Consistent with the terms of this Agreement, the Servicer may also:
(i) waive, modify or vary any term of any Mortgage Loan;
(ii) consent to the postponement of strict compliance with any
such term or in any manner grant indulgence to any Mortgagor;
(iii) arrange with a Mortgagor a schedule for the payment of
principal and interest due and unpaid;
(iv) forgive any portion of the amounts contractually owed under
the Mortgage Loan;
(v) capitalize past due amounts owed under the Mortgage Loan by
adding any amounts in arrearage to the existing principal balance of the
Mortgage Loan (a "Capitalization Workout") which will result in an increased
Monthly Payment amount, provided that: (A) the amount added to the existing
principal balance of the Mortgage Loan (the "Capitalized Amount") shall be no
greater than five times the Mortgagor's current Monthly Payment amount; and (B)
the Servicer shall not enter into a Capitalization Workout unless the CLTV of
the Mortgage Loan prior to the Capitalization Workout equals or exceeds 80% and
the Mortgagor has qualified for the Capitalization Workout under the Servicer's
servicing guidelines; or
(vi) reset the maturity date for the Mortgage Loan, but in no
event shall such reset date extend beyond the end of the Collection Period
preceding the Final Payment Date;
or any combination of the foregoing, if in the Servicer's determination such
waiver, modification, postponement or indulgence is not materially adverse to
the interests of the Securityholders or the Enhancer; provided, however, that
the Servicer may not modify or permit any Subservicer to modify any Mortgage
Loan (including without limitation any modification that would change the Loan
Rate, forgive the payment of any principal or interest (unless in connection
with the liquidation of the related Mortgage Loan) or extend the final maturity
date of such Mortgage Loan) unless such Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable. The general
terms of any waiver, modification, forgiveness, postponement or indulgence with
respect to any of the Mortgage Loans will be included in the Servicing
Certificate, and such Mortgage Loans will not be considered "delinquent" for the
purposes of the Basic Documents so long as the Mortgagor complies with the terms
of such waiver, modification, forgiveness, postponement or indulgence.
(b) The Servicer shall establish a Custodial Account, which shall be an Eligible
Account, titled "GMACM Home Equity Loan Trust 2004-HE5," in which the Servicer
shall deposit or cause to be deposited any amounts representing payments and
collections in respect of the Initial Mortgage Loans received by it subsequent
to or on the Cut-Off Date or, with respect to the Subsequent Mortgage Loans, the
Subsequent Cut-Off Date (other than in respect of the payments referred to in
the following paragraph), within two Business Days following receipt thereof (or
otherwise on or prior to the Closing Date), including the following payments and
collections received or made by it (without duplication):
(i) all payments of principal of or interest on the Mortgage Loans
received or advanced by the Servicer, net of any portion of the interest thereof
retained by any Subservicer as subservicing fees;
(ii) the aggregate Repurchase Price of the Mortgage Loans purchased by
the Servicer pursuant to Section 3.15;
(iii) Net Liquidation Proceeds, net of any related Foreclosure Profit,
and all Subsequent Net Recovery Amounts;
(iv) all proceeds of any Mortgage Loans repurchased by a Seller pursuant
to the Purchase Agreement, and all Substitution Adjustment Amounts required to
be deposited in connection with the substitution of an Eligible Substitute Loan
pursuant to the Purchase Agreement;
(v) Insurance Proceeds, other than Net Liquidation Proceeds, resulting
from any insurance policy maintained on a Mortgaged Property; and
(vi) amounts required to be paid by the Servicer pursuant to Section
8.08;
provided, however, that with respect to each Collection Period, the Servicer
shall be permitted to retain from payments in respect of interest on the
Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing
requirements respecting deposits to the Custodial Account are exclusive, it
being understood that, without limiting the generality of the foregoing, the
Servicer need not deposit in the Custodial Account amounts representing
Foreclosure Profits, fees (including annual fees) or late charge penalties,
payable by Mortgagors (such amounts to be retained as additional servicing
compensation in accordance with Section 3.09 hereof), or amounts received by the
Servicer for the accounts of Mortgagors for application towards the payment of
taxes, insurance premiums, assessments and similar items. In the event any
amount not required to be deposited in the Custodial Account is so deposited,
the Servicer may at any time withdraw such amount from the Custodial Account,
any provision herein to the contrary notwithstanding. The Servicer shall retain
all Foreclosure Profits as additional servicing compensation.
The Servicer, in its sole discretion, may deposit into the
Custodial Account, Servicer Advances, representing installments of principal of
or interest on Mortgage Loans that were delinquent as of the end of any
Collection Period, provided that the Servicer reasonably believes that such
amounts will be recoverable from Collections on the related Mortgage Loan. If
the Servicer makes any such Servicer Advances, the Servicer shall be entitled to
reimburse itself by withdrawing from the Custodial Account, as provided herein,
any amounts so advanced. The Servicer may cause the institution maintaining the
Custodial Account to invest any funds in the Custodial Account in Permitted
Investments (including obligations of the Servicer or any of its Affiliates, if
such obligations otherwise qualify as Permitted Investments), which investments
shall mature not later than the Business Day preceding the next succeeding
Payment Date, and which investments shall not be sold or disposed of prior to
maturity. In addition, no such Permitted Investment shall be purchased at a
price in excess of par. Except as provided above, all income and gain realized
from any such investment shall inure to the benefit of the Servicer and shall be
subject to its withdrawal or order from time to time. The amount of any losses
incurred in respect of the principal amount of any such investments shall be
deposited in the Custodial Account by the Servicer out of its own funds
immediately as realized.
(c) The Servicer shall require each Subservicer to hold all funds constituting
collections on the Mortgage Loans, pending remittance thereof to the Servicer,
in one or more accounts meeting the requirements of an Eligible Account, and
shall require all such funds to be invested in Permitted Investments, unless all
such collections are remitted on a daily basis to the Servicer for deposit into
the Custodial Account.
Section 3.03 Withdrawals from the Custodial Account
The Servicer shall, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit therein pursuant to
Section 3.02 that are attributable to the Mortgage Loans for the following
purposes:
(a) on each Determination Date, the Servicer shall determine the
aggregate amounts to be withdrawn from the Custodial Account and applied
pursuant to Section 3.05(a) of the Indenture and, prior to the close of business
on the Business Day prior to the related Payment Date (provided, however, that
the Indenture Trustee shall not be required to invest any amounts deposited into
the Note Payment Account after 1:00 p.m.), shall withdraw such amounts from the
Custodial Account and deposit such amounts into the Note Payment Account to be
distributed by the Paying Agent in accordance with and in the order or priority
set forth in Section 3.05(a) of the Indenture for such Payment Date, in
accordance with the Servicing Certificate;
(b) to pay to itself from any monthly payments received from the
Mortgagors, the amount of such payment that represents interest accrued on the
related Mortgage Loan for any period prior to the Cut-Off Date;
(c) to the extent deposited to the Custodial Account, to reimburse
itself or the related Subservicer for previously unreimbursed expenses incurred
in maintaining individual insurance policies pursuant to Section 3.04, or
Liquidation Expenses, paid pursuant to Section 3.07 or otherwise reimbursable
pursuant to the terms of this Agreement (to the extent not payable pursuant to
Section 3.09), such withdrawal right being limited to amounts received on
particular Mortgage Loans (other than any Repurchase Price in respect thereof)
that represent late recoveries of the payments for which such advances were
made, or from related Net Liquidation Proceeds or the proceeds of the purchase
of such Mortgage Loan;
(d) to pay to itself out of each payment received on account of interest
on a Mortgage Loan as contemplated by Section 3.09, an amount equal to the
related Servicing Fee and the Recovery Fee (to the extent not retained pursuant
to Section 3.02 or 3.07), and to pay to any Subservicer any subservicing fees
not previously withheld by such Subservicer;
(e) to the extent deposited in the Custodial Account, to pay to itself
as additional servicing compensation any (i) interest or investment income
earned on funds deposited in the Custodial Account that it is entitled to
withdraw pursuant to Sections 3.02(b) and 5.01, and (ii) Foreclosure Profits (to
the extent permitted by law);
(f) to pay to itself or a Seller, with respect to any Mortgage Loan or
property acquired in respect thereof that has been purchased or otherwise
transferred to such Seller, the Servicer or other entity, all amounts received
thereon and not required to be distributed to Securityholders as of the date on
which the related Purchase Price or Repurchase Price is determined;
(g) to withdraw any other amount deposited in the Custodial Account that
was not required to be deposited therein pursuant to Section 3.02;
(h) to pay to itself, with respect to any Mortgage Loan for which it has
made a Servicer Advance, any previously unreimbursed Servicer Advances of such
amounts theretofore made to the extent of receipts of late recoveries of such
payments from the related Mortgagors, out of related Net Liquidation Proceeds or
the proceeds of the purchase of such Mortgage Loans;
(i) to reimburse itself for the amount of any investment earnings
advanced prior to maturity pursuant to Section 3.17(c) or Section 5.01, to the
extent not reimbursed from earnings received on the related investment at
maturity;
(j) at its option, for so long as it is the sole Certificateholder, to
pay to itself from amounts otherwise required to be remitted to the Distribution
Account in accordance with Section 3.05(a)(xiii) of the Indenture, all amounts
payable to it as a Certificateholder on the related Payment Date; and
(k) to reimburse itself for advances made pursuant to this Agreement
that are not reimbursed pursuant to clauses (c) and (h) of this Section 3.03.
Since, in connection with withdrawals pursuant to clauses (c), (d), (f)
and (h), the Servicer's entitlement thereto is limited to collections or other
recoveries on the related Mortgage Loan, the Servicer shall keep and maintain
separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose
of justifying any withdrawal from the Custodial Account pursuant to such
clauses. Notwithstanding any other provision of this Agreement, the Servicer
shall be entitled to reimburse itself for any previously unreimbursed expenses
incurred pursuant to Section 3.07 or otherwise reimbursable pursuant to the
terms of this Agreement that the Servicer determines to be otherwise
nonrecoverable (except with respect to any Mortgage Loan as to which the
Repurchase Price has been paid), by withdrawal from the Custodial Account of
amounts on deposit therein attributable to the Mortgage Loans on any Business
Day prior to the Payment Date succeeding the date of such determination.
Section 3.04 Maintenance of Maintenance of Hazard Insurance; Property Protection
Expenses
To the extent permitted under the related Mortgage Note and Mortgage,
and to the extent the Servicer receives notice that a hazard insurance policy
has been cancelled, the Servicer shall cause to be maintained for each Mortgage
Loan hazard insurance naming the Servicer or related Subservicer as loss payee
thereunder providing extended coverage in an amount which is at least equal to
the lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan from time to time or (ii) the combined principal balance owing on
such Mortgage Loan and any mortgage loan senior to such Mortgage Loan from time
to time; provided, however, that such coverage may not be less than the minimum
amount required to fully compensate for any loss or damage on a replacement cost
basis. The Servicer shall use its best efforts to monitor that hazard insurance
is maintained as described in the previous sentence in the same manner as it
would for mortgage loans in its own portfolio. The Servicer shall also cause to
be maintained on property acquired upon foreclosure, or deed in lieu of
foreclosure, of any Mortgage Loan, fire insurance with extended coverage in an
amount which is at least equal to the amount necessary to avoid the application
of any co-insurance clause contained in the related hazard insurance policy.
Amounts collected by the Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the Servicer's normal servicing procedures) shall be deposited in the Custodial
Account to the extent called for by Section 3.02. In cases in which any
Mortgaged Property is located at any time during the life of a Mortgage Loan in
a federally designated flood area, to the extent permitted under the related
Mortgage Note and Mortgage, and to the extent the Servicer receives notice that
the related flood insurance has been cancelled, the hazard insurance to be
maintained for the related Mortgage Loan shall include flood insurance (to the
extent available). All such flood insurance shall be in amounts equal to the
lesser of (i) the amount required to compensate for any loss or damage to the
related Mortgaged Property on a replacement cost basis and (ii) the maximum
amount of such insurance available for such Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program). The Servicer shall use
its best efforts to monitor such flood insurance as described in the previous
sentence in the same manner as it would for mortgage loans in its own portfolio.
The Servicer shall be under no obligation to require that any Mortgagor maintain
earthquake or other additional insurance and shall be under no obligation itself
to maintain any such additional insurance on property acquired in respect of a
Mortgage Loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance. If
the Servicer shall obtain and maintain a blanket policy consistent with its
general mortgage servicing activities insuring against hazard losses on all of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.04, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Servicer shall, in the event that there shall not have been maintained
on the related Mortgaged Property a policy complying with the first sentence of
this Section 3.04 and there shall have been a loss which would have been covered
by such policy, deposit in the Custodial Account the amount not otherwise
payable under the blanket policy because of such deductible clause. Any such
deposit by the Servicer shall be made on the last Business Day of the Collection
Period in the month in which payments under any such policy would have been
deposited in the Custodial Account. In connection with its activities as
servicer of the Mortgage Loans, the Servicer agrees to present, on behalf of
itself, the Issuer and the Indenture Trustee, claims under any such blanket
policy. Section 3.05 Modification Agreements; Release of Lien.
The Servicer or the related Subservicer, as the case may be, shall be
entitled to (a) execute assumption agreements, substitution agreements, and
instruments of satisfaction or cancellation or of partial or full release or
discharge, or any other document contemplated by this Agreement and other
comparable instruments with respect to the Mortgage Loans and with respect to
the related Mortgaged Properties (and the Issuer and the Indenture Trustee each
shall promptly execute any such documents on request of the Servicer) and (b)
approve the granting of an easement thereon in favor of another Person, any
alteration or demolition of such Mortgaged Properties or other similar matters,
if it has determined, exercising its good faith business judgment in the same
manner as it would if it were the owner of the related Mortgage Loans, that the
security for, and the timely and full collectability of, such Mortgage Loans
would not be adversely affected thereby. A partial release pursuant to this
Section 3.05 shall be permitted only if the CLTV for the related Mortgage Loan
after such partial release does not exceed the CLTV for such Mortgage Loan as of
the related Cut-Off Date, and provided further that the Servicer and the
Enhancer have received an Opinion of Counsel to the effect that such partial
release will not result in an Adverse REMIC Event. Any fee collected by the
Servicer or the related Subservicer for processing such request will be retained
by the Servicer or such Subservicer as additional servicing compensation.
Section 3.06 Trust Estate; Related Documents.
(a) When required by the provisions of this Agreement, the Issuer or the
Indenture Trustee shall execute instruments to release property from the terms
of the Trust Agreement, Indenture or Custodial Agreement, as applicable, or
convey the Issuer's or the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Agreement. No party relying upon an instrument executed by the Issuer or the
Indenture Trustee as provided in this Section 3.06 shall be bound to ascertain
the Issuer's or the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any moneys.
(b) If from time to time any written assurance, assumption agreement or
substitution agreement or other similar agreement shall be executed pursuant to
Section 3.05, the Servicer shall check that each of such documents purports to
be an original executed copy (or a copy of the original executed document if the
original executed copy has been submitted for recording and has not yet been
returned) and, if so, shall file such documents, and upon receipt of the
original executed copy from the applicable recording office or receipt of a copy
thereof certified by the applicable recording office shall file such originals
or certified copies, with the Related Documents held by the Servicer.
(c) Upon receipt of a Request for Release from the Servicer,
substantially in the form of Exhibit C hereto, to the effect that a Mortgage
Loan has been the subject of a final payment or a prepayment in full and such
Mortgage Loan has been terminated or that substantially all Net Liquidation
Proceeds that have been determined by the Servicer in its reasonable judgment to
be finally recoverable have been recovered, and upon deposit to the Custodial
Account of such final monthly payment, prepayment in full together with accrued
and unpaid interest to the date of such payment with respect to such Mortgage
Loan or, if applicable, Net Liquidation Proceeds, the Custodian shall promptly
release the Related Documents held by the Custodian to the Servicer. The
Indenture Trustee shall execute such Related Documents, along with such
documents as the Servicer or the related Mortgagor may request to evidence
satisfaction and discharge of such Mortgage Loan, upon request of the Servicer.
If from time to time and as appropriate for the servicing or foreclosure of any
Mortgage Loan, the Servicer requests the Custodian to release Related Documents
held by the Custodian and delivers to the Custodian a trust receipt reasonably
satisfactory to the Custodian and signed by a Responsible Officer of the
Servicer, the Custodian shall release such Related Documents to the Servicer. If
such Mortgage Loans shall be liquidated and the Custodian receives a certificate
from the Servicer as provided above, then, upon request of the Servicer, the
Custodian shall release the trust receipt to the Servicer.
Section 3.07 Realization Upon Defaulted Mortgage Loans; Loss Mitigation.
With respect to any Mortgage Loan that comes into and continues in
default, the Servicer shall decide whether to (i) foreclose upon the related
Mortgaged Property, (ii) write off the unpaid Principal Balance thereof as bad
debt, (iii) take a deed in lieu of foreclosure, (iv) accept a short sale (a
payoff of the Mortgage Loan for an amount less than the total amount
contractually owed in order to facilitate a sale of the Mortgaged Property by
the Mortgagor), (v) permit a short refinancing (a payoff of the Mortgage Loan
for an amount less than the total amount contractually owed in order to
facilitate refinancing transactions by the Mortgagor not involving a sale of the
Mortgaged Property), (vi) arrange for a repayment plan, (vii) agree to a
modification in accordance with this Agreement or (viii) take an unsecured note
in each case subject to the rights of any related first Lien holder; provided,
that in connection with the foregoing, if the Servicer has actual knowledge that
any Mortgaged Property is affected by hazardous or toxic wastes or substances
and that the acquisition of such Mortgaged Property would not be commercially
reasonable, then the Servicer shall not cause the Issuer or the Indenture
Trustee to acquire title to such Mortgaged Property in a foreclosure or similar
proceeding. In connection with such decision, the Servicer shall follow such
practices (including, in the case of any default on a related senior mortgage
loan, the advancing of funds to correct such default if deemed to be appropriate
by the Servicer) and procedures as it shall deem necessary or advisable and as
shall be normal and usual in its general mortgage servicing activities and as
shall be required or permitted by the Program Guide; provided, that the Servicer
shall not be liable in any respect hereunder if the Servicer is acting in
connection with any such foreclosure or attempted foreclosure which is not
completed or other conversion in a manner that is consistent with the provisions
of this Agreement. The foregoing is subject to the proviso that the Servicer
shall not be required to expend its own funds in connection with any foreclosure
or attempted foreclosure which is not completed or towards the correction of any
default on a related senior mortgage loan or restoration of any property unless
it shall determine that such expenditure will increase the related Net
Liquidation Proceeds. In the event of a determination by the Servicer that any
such expenditure previously made pursuant to this Section 3.07 will not be
reimbursable from Net Liquidation Proceeds, the Servicer shall be entitled to
reimbursement of its funds so expended pursuant to Section 3.03.
Notwithstanding any provision of this Agreement, a Mortgage Loan may be
deemed to be finally liquidated if substantially all amounts expected by the
Servicer to be received in connection therewith have been received; provided,
however, that the Servicer may continue to pursue recovery of such Mortgage Loan
and any Subsequent Net Recovery Amount with respect to any such Mortgage Loan
shall be deposited into the Custodial Account. If the Servicer continues to
pursue recovery, the Servicer shall be entitled to the Recovery Fee with respect
to that Mortgage Loan and to be reimbursed for any Servicer Advances and
expenses as though such Mortgage Loan continued to be an Outstanding Mortgage
Loan hereunder. For purposes of determining the amount of any Net Liquidation
Proceeds, Insurance Proceeds or other unscheduled collections, the Servicer may
take into account minimal amounts of additional receipts expected to be received
or any estimated additional liquidation expenses expected to be incurred in
connection with such Mortgage Loan.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Indenture Trustee, which shall hold the same on behalf of
the Issuer in accordance with Section 3.13 of the Indenture. Notwithstanding any
such acquisition of title and cancellation of the related Mortgage Loan, such
Mortgaged Property shall (except as otherwise expressly provided herein) be
considered to be an outstanding Mortgage Loan held as an asset of the Issuer
until such time as such property shall be sold. Consistent with the foregoing
for purposes of all calculations hereunder, so long as the related Mortgage Loan
shall be considered to be an outstanding Mortgage Loan, it shall be assumed
that, notwithstanding that the indebtedness evidenced by the related Mortgage
Note shall have been discharged, such Mortgage Note in effect at the time of any
such acquisition of title before any adjustment thereto by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period will remain in effect.
Any proceeds from foreclosure proceedings or the purchase or repurchase
of any Mortgage Loan pursuant to the terms of this Agreement, as well as any
recovery resulting from a collection of Net Liquidation Proceeds or Insurance
Proceeds, shall be applied in the following order of priority: first, to
reimburse the Servicer or the related Subservicer in accordance with this
Section 3.07; second, to pay the Servicer or the related Subservicer all
Servicing Fees payable therefrom; third, to pay accrued and unpaid interest on
such Mortgage Loan, at the Net Loan Rate to the Payment Date on which such
amounts are to be deposited in the Note Payment Account or Distribution Account;
and fourth, as a recovery of principal on such Mortgage Loan. Any remaining
amount shall constitute Foreclosure Profits.
In the event that the Trust acquires any Mortgaged Property as aforesaid
or otherwise in connection with a default or imminent default on a Mortgage
Loan, the Servicer on behalf the Trust shall dispose of such Mortgaged Property
as soon as practicable, giving due consideration to the interests of the
Noteholders, the Certificateholders and the Enhancer, but in all cases within
three full years after the taxable year of its acquisition by the Trust for
purposes of Section 860G(a)(8) of the Code (or such shorter period as may be
necessary under applicable state (including any state in which such property is
located) law to maintain the status of any REMIC as a REMIC under applicable
state law and avoid taxes resulting from such property failing to be foreclosure
property under applicable state law) or, at the expense of the Trust, request,
more than 60 days before the day on which such grace period would otherwise
expire, an extension of such grace period unless the Servicer obtains for the
Indenture Trustee an Opinion of Counsel, addressed to the Indenture Trustee, the
Enhancer and the Servicer, to the effect that the holding by the Trust of such
Mortgaged Property subsequent to such period will not result in the imposition
of taxes on "prohibited transactions" as defined in Section 860F of the Code or
cause the Trust to fail to qualify as a REMIC (for federal (or any applicable
State or local) income tax purposes) at any time that any Certificates are
outstanding, in which case the Trust may continue to hold such Mortgaged
Property (subject to any conditions contained in such Opinion of Counsel). The
Servicer shall be entitled to be reimbursed from the Custodial Account for any
costs incurred in obtaining such Opinion of Counsel, as provided in Section
3.03. Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Trust shall be rented (or allowed to continue to be
rented) or otherwise used by or on behalf of the Trust in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or (ii) subject any REMIC to the imposition of any federal income taxes
on the income earned from such Mortgaged Property, including any taxes imposed
by reason of Section 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless the Trust and the Enhancer with respect to the
imposition of any such taxes.
Section 3.08 Issuer and Indenture Trustee to Cooperate.
(a) On or before each Payment Date, the Servicer will notify the
Indenture Trustee or the Custodian, with a copy to the Issuer, of the
termination of or the payment in full and the termination of any Mortgage Loan
during the preceding Collection Period. Upon receipt of payment in full, the
Servicer is authorized to execute, pursuant to the authorization contained in
Section 3.01, an instrument of satisfaction regarding the related Mortgage,
which instrument of satisfaction shall be recorded by the Servicer if required
by applicable law and be delivered to the Person entitled thereto and to cause
the removal from the registration on the MERS(R) System of such Mortgage. It is
understood and agreed that any expenses incurred in connection with such
instrument of satisfaction or transfer shall be reimbursed from amounts
deposited in the Custodial Account. From time to time and as appropriate for the
servicing or foreclosure of any Mortgage Loan, the Custodian shall, upon request
of the Servicer and delivery to the Custodian, with a copy to the Issuer, of a
Request for Release, in the form attached hereto as Exhibit C, signed by a
Servicing Officer, release or cause to be released the related Mortgage Note to
the Servicer. The Issuer or Indenture Trustee shall promptly execute such
documents, in the forms provided by the Servicer, as shall be necessary for the
prosecution of any such proceedings or the taking of other servicing actions.
Such trust receipt shall obligate the Servicer to return such Mortgage Note to
the Custodian (as specified in such receipt) when the need therefor by the
Servicer no longer exists, unless the Mortgage Loan shall be liquidated, in
which case, upon receipt of a certificate of a Servicing Officer similar to that
specified above, such trust receipt shall be released to the Servicer.
(b) In order to facilitate the foreclosure of the Mortgage securing any
Mortgage Loan that is in default following recordation of the related Assignment
of Mortgage in accordance with the provisions of the Purchase Agreement, the
Indenture Trustee or the Issuer shall, if so requested in writing by the
Servicer, promptly execute an appropriate assignment in the form provided by the
Servicer to assign such Mortgage Loan for the purpose of collection to the
Servicer (any such assignment shall unambiguously indicate that the assignment
is for the purpose of collection only), and, upon such assignment, such assignee
for collection will thereupon bring all required actions in its own name and
otherwise enforce the terms of such Mortgage Loan and deposit or credit the Net
Liquidation Proceeds, exclusive of Foreclosure Profits, received with respect
thereto into the Custodial Account. In the event that all delinquent payments
due under any such Mortgage Loan are paid by the Mortgagor and any other
defaults are cured, then the assignee for collection shall promptly reassign
such Mortgage Loan to the Indenture Trustee and return all Related Documents to
the place where the related Mortgage File was being maintained.
In connection with the Issuer's obligation to cooperate as provided in this
Section 3.08 and all other provisions of this Agreement requiring the Issuer to
authorize or permit any actions to be taken with respect to the Mortgage Loans,
the Indenture Trustee, as pledgee of the Mortgage Loans and as assignee of
record of the Mortgage Loans on behalf of the Issuer pursuant to Section 3.13 of
the Indenture, expressly agrees, on behalf of the Issuer, to take all such
actions on behalf of the Issuer and to promptly execute and return all
instruments reasonably required by the Servicer in connection therewith;
provided, that if the Servicer requests a signature of the Indenture Trustee, on
behalf of the Issuer, then the Servicer shall deliver to the Indenture Trustee
an Officer's Certificate stating that such signature is necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
under this Agreement.
Section 3.09 Servicing Compensation; Payment of Certain Expenses by Servicer.The
Servicer shall be entitled to receive the Servicing Fee in accordance with
Section 3.03 as compensation for its services in connection with servicing the
Mortgage Loans. Moreover, late payment charges and other receipts not required
to be deposited in the Custodial Account as specified in Section 3.02 shall be
retained by the Servicer as additional servicing compensation. The Servicer
shall be required to pay all expenses incurred by it in connection with its
activities hereunder (including payment of all other fees and expenses not
expressly stated hereunder to be for the account of the Securityholders),
including the fees and expenses of the Owner Trustee, Indenture Trustee and the
Custodian, and shall not be entitled to reimbursement therefor.
Section 3.10 Annual Statement as to Compliance.
(a) The Servicer shall deliver to the Issuer, the Indenture Trustee and the
Depositor, with a copy to the Enhancer, beginning March 15, 2005, and on or
before March 15 of each year thereafter, an Officer's Certificate stating that
(i) a review of the activities of the Servicer during the preceding calendar
year and of its performance under any servicing agreements to which it is a
party, including this Agreement, has been made under such officer's supervision
and (ii) to the best of such officer's knowledge, based on such review, the
Servicer has complied in all material respects with the minimum servicing
standards set forth in the Uniform Single Attestation Program for Mortgage
Bankers and has fulfilled all of its material obligations in all material
respects throughout such year, or, if there has been material noncompliance with
such servicing standards or a default in the fulfillment in all material
respects of any such obligation relating to this Servicing Agreement, such
statement shall include a description of such noncompliance or specify each such
default, as the case may be, known to such officer and the nature and status
thereof.
(b) The Servicer shall deliver to the Issuer and the Indenture Trustee, with a
copy to the Enhancer, promptly after having obtained knowledge thereof, but in
no event later than five Business Days thereafter, written notice by means of an
Officer's Certificate of any event which with the giving of notice or the lapse
of time or both, would become a Servicing Default.
Section 3.11 Annual Servicing Report.
Beginning March 15, 2005, and on or before March 15 of each year
thereafter, the Servicer at its expense shall cause a firm of nationally
recognized independent public accountants (which firm may also render other
services to the Servicer) to furnish a report to the Issuer, the Indenture
Trustee, the Depositor, the Enhancer and each Rating Agency stating its opinion
that, on the basis of an examination conducted by such firm substantially in
accordance with standards established by the American Institute of Certified
Public Accountants, the assertions made pursuant to Section 3.10 regarding
compliance with the minimum servicing standards set forth in the Uniform Single
Attestation Program for Mortgage Bankers during the preceding calendar year are
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such accounting standards
require it to report. In rendering such statement, such firm may rely, as to
matters relating to the direct servicing of Mortgage Loans by Subservicers, upon
comparable statements for examinations conducted by independent public
accountants substantially in accordance with standards established by the
American Institute of Certified Public Accountants (rendered within one year of
such statement) with respect to such Subservicers.
Section 3.12 Access to Certain Documentation and Information Regarding the
Mortgage Loans. Whenever required by statute or regulation, the Servicer shall
provide to the Enhancer, any Securityholder upon reasonable request (or a
regulator for a Securityholder) or the Indenture Trustee, reasonable access to
the documentation regarding the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Servicer. Nothing in this Section 3.12 shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding Mortgagors, and the failure of
the Servicer to provide access as provided in this Section 3.12 as a result of
such obligation shall not constitute a breach of this Section 3.12.
Section 3.13 Maintenance of Certain Servicing Insurance Policies. The Servicer
shall, during the term of its service as servicer, maintain in force and effect
(i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and (ii) a fidelity bond in
respect of its officers, employees or agents. Each such policy or policies and
fidelity bond shall be at least equal to the coverage that would be required by
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, whichever is greater, for Persons performing
servicing for mortgage loans purchased by such entity.
Section 3.14 Information Required by the Internal Revenue Service and Reports of
Foreclosures and Abandonments of Mortgaged Property.The Servicer shall prepare
and deliver all federal and state information reports with respect to the
Mortgage Loans when and as required by all applicable state and federal income
tax laws. In particular, with respect to the requirement under Section 6050J of
the Code to the effect that the Servicer or Subservicer shall make reports of
foreclosures and abandonments of any mortgaged property for each year beginning
in 2004, the Servicer or Subservicer shall file reports relating to each
instance occurring during the previous calendar year in which the Servicer (a)
on behalf of the Issuer, acquired an interest in any Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction of a
Mortgage Loan, or (b) knew or had reason to know that any Mortgaged Property had
been abandoned. The reports from the Servicer or Subservicer shall be in form
and substance sufficient to meet the reporting requirements imposed by Section
6050J and Section 6050H (reports relating to mortgage interest received) of the
Code.
Section 3.15 Optional Repurchase or Transfer of Mortgage Loans.
(a) Notwithstanding any provision in Section 3.07 to the contrary, the
Servicer, at its option and in its sole discretion, may repurchase any Mortgage
Loan that is delinquent in payment by a period of ninety (90) days or longer for
a price equal to the Repurchase Price, provided that any such repurchase shall
occur only during the 60-day period commencing on the first day of the next
calendar month.
(b) The Servicer, at its option and in its sole discretion, may
repurchase any Mortgage Loan for a price equal to the Repurchase Price (i) if
the related Mortgage did not have a Lien senior to it as of the related Cut-Off
Date, and, at the request of the related Mortgagor, the Servicer agrees to the
placement of a Lien on the related Mortgaged Property senior to that of such
Mortgage or (ii) at the request of the Mortgagor, the Servicer agrees to the
refinancing of the Lien senior to that of the related Mortgage resulting in a
CLTV that does not satisfy the conditions set forth in Section 3.01(a).
(c) Subject to the conditions set forth below, the Servicer, upon
receipt of written notice and direction from the Issuer, shall cause the
retransfer of Mortgage Loans from the Trust Estate to the Issuer as of the close
of business on a Payment Date (the "Transfer Date"). On the fifth Business Day
(the "Transfer Notice Date") prior to the Transfer Date designated in such
notice, the Servicer shall give the Indenture Trustee, the Enhancer and the
Rating Agencies a notice of the proposed retransfer that contains a list of the
Mortgage Loans to be retransferred. Such retransfers of Mortgage Loans shall be
permitted upon satisfaction of the following conditions:
(i) On the Transfer Date, the Overcollateralization Amount (after
giving effect to the removal from the Trust Estate of the Mortgage Loans
proposed to be retransferred) will equal or exceed the Required
Overcollateralization Amount;
(ii) On or before the Transfer Date, the Servicer shall have
delivered to the Indenture Trustee a revised Mortgage Loan Schedule showing that
the Mortgages Loan transferred to the Certificateholders are no longer owned by
the Trust Estate;
(iii) The Servicer shall represent and warrant that the Mortgage
Loans to be removed from the Trust Estate were selected at random and the
Servicer shall have received the consent of the Enhancer as to the selection of
the particular Mortgage Loans to be removed; and
(iv) The Servicer shall have delivered to the Indenture Trustee
and the Enhancer an officer's certificate certifying that the items set forth in
subparagraphs (i) through (iii), inclusive, have been performed or are true and
correct, as the case may be. The Indenture Trustee may conclusively rely on such
officer's certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
The Servicer shall not be permitted to effect the retransfer of
any Mortgage Loan except under the conditions specified above. Upon receiving
the requisite notice and direction from the Issuer, the Servicer shall perform
in a timely manner those acts required of it, as specified above. Upon
satisfaction of the above conditions, on the Transfer Date the Indenture Trustee
shall deliver, or cause to be delivered, to the Issuer a written itemization of
each Mortgage Loan being transferred, together with the Mortgage File for each
such Mortgage Loan, and the Indenture Trustee shall execute and deliver to the
Issuer or its designee such other documents prepared by the Servicer as shall be
reasonably necessary to transfer such Mortgage Loans to the Certificateholders.
Any such transfer of the Trust Estate's right, title and interest in and to a
Mortgage Loan shall be without recourse, representation or warranty by or of the
Indenture Trustee or the Trust Estate to the Issuer or its designee.
Section 3.16 Advance Facility
(a) The Servicer is hereby authorized to enter into any facility (an
"Advance Facility") with any Person (any such Person, an "Advance Facility
Counterparty"), without the consent of any party to this Agreement or the
Enhancer, which provides that the Servicer may pledge or sell its rights to
receive reimbursement of Servicer Advances pursuant to this Agreement ("Advance
Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or
similar facilities providing liquidity for the funding of the Servicer Advances,
including facilities providing that such Advance Facility Counterparty may make
all or a portion of the Servicer Advances. Notwithstanding the existence of any
Advance Facility under which an Advance Facility Counterparty agrees to fund
Servicer Advances on the Servicer's behalf, the Servicer shall remain obligated
pursuant to this Agreement to make any Servicer Advances as required by this
Agreement, and shall not be relieved of such obligations by virtue of such
Advance Facility.
(b) If the Servicer enters into an Advance Facility, and for so long as
an Advance Facility Counterparty remains entitled to receive reimbursement for
any Servicer Advances ("Advance Reimbursement Amount"), then the Servicer shall
identify such Advance Reimbursement Amount as received, consistently with the
reimbursement rights set forth in Sections 3.03 of this Agreement, and shall
remit such Advance Reimbursement Amount in accordance with the documentation
establishing the Advance Facility to such Advance Facility Counterparty or to a
trustee, agent or custodian (an "Advance Facility Trustee") designated by such
Advance Facility Counterparty. Notwithstanding the foregoing, if so required
pursuant to the terms of the Advance Facility, the Servicer may withdraw or
direct the Indenture Trustee to withdraw, as applicable, from the Custodial
Account, and the Servicer shall, and if so directed, the Indenture Trustee is
hereby authorized to and shall, pay to the Advance Facility Counterparty or the
Advance Facility Trustee the Advance Reimbursement Amount identified pursuant to
the preceding sentence.
(c) The Advance Reimbursement Amount shall consist solely of amounts in
respect of Servicer Advances made with respect to the Mortgage Loans for which
the Servicer would be permitted to reimburse itself in accordance with this
Agreement, assuming the Servicer had made the related Servicer Advances. Any
Advance Reimbursement Amount that the Servicer, in its capacity as Servicer, is
entitled to be paid shall not be included in distributions to Noteholders. An
Advance Facility Counterparty whose obligations are limited to the making of
Servicer Advances will not be deemed to be a Subservicer under this Agreement or
be required to meet the criteria for qualification as a Subservicer under this
Agreement.
(d) Any Advance Reimbursement Amount allocated to reimburse Servicer
Advances made with respect to any particular Mortgage Loan shall be allocated to
the reimbursement of the unreimbursed Servicer Advances made with respect to
that Mortgage Loan on a "first-in, first out" ("FIFO") basis, such that the
Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance
for that Mortgage Loan that was disbursed earliest in time first, and to
reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest
in time, last. The Servicer shall provide to the related Advance Facility
Counterparty or Advance Facility Trustee loan-by-loan information with respect
to each Advance Reimbursement Amount remitted to such Advance Facility
Counterparty or Advance Facility Trustee, to enable the Advance Facility
Counterparty or Advance Facility Trustee to make the FIFO allocation of each
such Advance Reimbursement Amount with respect to each Mortgage Loan.
(e) Upon request of the Servicer, the Indenture Trustee agrees to
execute such acknowledgments, certificates, and other documents recognizing the
interests of any Advance Facility Counterparty in such Advance Reimbursement
Rights as the Servicer may cause to be made subject to Advance Facilities
pursuant to this Section 3.16.
Section 3.17 Pre-Funding Account.
(a) No later than the Closing Date, the Indenture Trustee shall
establish and maintain on behalf of itself one or more segregated trust
accounts, which shall be Eligible Accounts, titled "Pre-Funding Account, ▇▇▇▇▇
Fargo Bank, N.A., as Indenture Trustee for GMACM Home Equity Loan Trust
2004-HE5" (the "Pre-Funding Account"). Notwithstanding anything herein to the
contrary, the Pre-Funding Account shall not be an asset of any REMIC. To the
extent that the Pre-Funding Account constitutes a reserve fund for federal
income tax purposes, (1) it shall be an outside reserve fund and not an asset
any REMIC, (2) it shall be owned by GMACM, as Seller and (3) amounts transferred
any REMIC to the Pre-Funding Account shall be treated as transferred to GMACM,
as Seller, or any successor, all within the meaning of Section 1.860G-2(h) of
the Treasury Regulations. On the Closing Date, GMACM shall deposit into the
Pre-Funding Account an amount equal to the Original Pre-Funded Amount from the
proceeds of the sale of the Securities. On each Subsequent Transfer Date, the
Servicer shall instruct the Indenture Trustee in writing to withdraw from the
Pre-Funding Account an amount equal to the aggregate Principal Balance as of the
related Subsequent Cut-Off Date of the Subsequent Mortgage Loans to be sold to
the Trust on such Subsequent Transfer Date and purchased with funds on deposit
in the Pre-Funding Account, and to pay such amount to or upon the order of GMACM
upon satisfaction of the conditions set forth in this Agreement, in the Purchase
Agreement and in the related Subsequent Transfer Agreement with respect thereto.
(b) If the Pre-Funded Amount has not been reduced to zero at the close
of business on the last day of the Pre-Funding Period, after giving effect to
any withdrawal therefrom on such day, any remaining Pre-Funded Amount shall be
deposited in the Note Payment Account on such date and held uninvested and
applied as a principal payment on the Notes (other than the Class A-IO Notes) on
the next succeeding Payment Date in accordance with the terms of the Indenture.
(c) The Servicer may cause the institution maintaining the Pre-Funding
Account to invest any funds therein in Permitted Investments having a maturity
of up to 90 days or maturing or otherwise available not later than the Business
Day preceding the related Payment Date on which funds are scheduled to be
withdrawn to purchase Subsequent Mortgage Loans; provided, that any investment
in an obligation of the institution with which the Pre-Funding Account is
maintained may mature on or before 10:30 a.m., New York time, on such Payment
Date; and provided further, that no such investment may be sold or disposed of
prior to maturity. In addition, no such Permitted Investment shall be purchased
at a price in excess of par. Notwithstanding the foregoing, in the event
investment earnings have not matured on any Payment Date, the amount of such
earnings accrued as of such Payment Date shall be advanced by the Servicer for
deposit into the Note Payment Account (which advance shall be reimbursed to the
Servicer from such investment earnings at maturity). At any time when the
Indenture Trustee is maintaining the Pre-Funding Account, any request by the
Servicer to invest funds on deposit therein shall be in writing, delivered to
the Indenture Trustee at or before 10:30 a.m., New York time, if such investment
is to be made on such day. The Servicer shall certify that the requested
investment is a Permitted Investment maturing at or prior to the time required
hereby. Any such investment shall be registered in the name of the Indenture
Trustee or its nominee, and to the extent that any such investment is
certificated, such investment shall be maintained with the Indenture Trustee at
its Corporate Trust Office. All net income or other gain received from any such
investment shall be deposited into or credited to the Note Payment Account, and
may be withdrawn therefrom in accordance with Section 3.05 of the Indenture. In
no event shall the Indenture Trustee be liable for any investment losses on
Permitted Investments held in or credited to the Pre-Funding Account, provided
that such investments are made in accordance with the provisions of this
Agreement and the Indenture Trustee is not the obligor under the Permitted
Investment.
Section 3.18 Capitalized Interest Account.
(a) No later than the Closing Date, the Indenture Trustee shall
establish and maintain on behalf of itself one or more segregated trust
accounts, which shall be Eligible Accounts, titled "Capitalized Interest
Account, ▇▇▇▇▇ Fargo Bank, N.A., as Indenture Trustee for GMACM Home Equity Loan
Trust 2004-HE5" (the "Capitalized Interest Account"). Notwithstanding anything
herein to the contrary, the Capitalized Interest Account shall not be an asset
of any REMIC. To the extent that the Capitalized Interest Account constitutes a
reserve fund for federal income tax purposes, (1) it shall be an outside reserve
fund and not an asset of any REMIC, (2) it shall be owned by GMACM, as Seller
and (3) amounts transferred by any REMIC to the Capitalized Interest Account
shall be treated as transferred to GMACM, as Seller, or any successor, all
within the meaning of Section 1.860G-2(h) of the Treasury Regulations. The
Indenture Trustee shall, promptly upon receipt, deposit in the Capitalized
Interest Account and retain therein the Interest Coverage Amount. If the
Indenture Trustee shall not have received an investment direction from GMACM,
the Indenture Trustee shall invest funds on deposit in the Capitalized Interest
Account in Permitted Investments of the kind described in clause (v) of the
definition of Permitted Investments having a maturity date no later than the
next succeeding Payment Date. In addition, no such Permitted Investment shall be
purchased at a price in excess of par. The Servicer shall be entitled to retain
any investment earnings on amounts on deposit in the Capitalized Interest
Account and shall deposit into the Capitalized Interest Account the amount of
any net loss incurred in respect of any such Permitted Investment immediately
upon realization of such loss without any right of reimbursement therefor. The
Servicer shall be the owner of the Capitalized Interest Account and shall report
all items of income, deduction, gain or loss arising therefrom.
(b) On each Payment Date during the Pre-Funding Period and on the date
immediately after the end of the Pre-Funding Period, the Indenture Trustee, at
the written direction of the Servicer, shall withdraw from the Capitalized
Interest Account and deposit into the Note Payment Account (which such amounts
shall be held uninvested) an amount equal to the sum of (i) the Capitalized
Interest Requirement for such Payment Date and (ii) the Excess Capitalized
Interest Requirement for such Payment Date.
(c) In connection with each Subsequent Transfer Date occurring in the
Pre-Funding Period, the Servicer, at its option, may recalculate the Interest
Coverage Amount taking into account the amount remaining in the Pre-Funding
Account following the sale of Subsequent Mortgage Loans to the Trust on such
date. The recomputed Interest Coverage Amount shall be not less than the amount
necessary to cover the Capitalized Interest Requirement for each remaining
Payment Date in the Pre-Funding Period. On any such Subsequent Transfer Date,
GMACM shall instruct in writing the Indenture Trustee to pay to it from funds in
the Capitalized Interest Account the excess of the amount on deposit therein
over the recomputed Interest Coverage Amount.
(d) Upon the earlier of (i) termination of the Trust Agreement in
accordance with Section 8.01 thereof and (ii) the Payment Date following the end
of the Pre-Funding Period, any amount remaining on deposit in the Capitalized
Interest Account shall be withdrawn by the Indenture Trustee and paid to GMACM.
Section 3.19 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Servicer or
Subservicer, to the extent it has knowledge of such conveyance, shall enforce
any due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing:
(i) the Servicer shall not be deemed to be in default under this Section
3.19(a) by reason of any transfer or assumption which the Servicer is restricted
by law from preventing; and
(ii) if the Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to declare
invalid or otherwise avoid enforcement of a due-on-sale clause contained in any
Mortgage Note or Mortgage, the Servicer shall not be required to enforce the
due-on-sale clause or to contest such action.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to the
extent set forth in Section 3.19(a), in any case in which a Mortgaged Property
is to be conveyed to a Person by a Mortgagor, and such Person is to enter into
an assumption or modification agreement or supplement to the Mortgage Note or
Mortgage which requires the signature of the Indenture Trustee, or if an
instrument of release signed by the Indenture Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer is authorized,
subject to the requirements of the sentence next following, to execute and
deliver, on behalf of the Indenture Trustee, the assumption agreement with the
Person to whom the Mortgaged Property is to be conveyed and such modification
agreement or supplement to the Mortgage Note or Mortgage or other instruments as
are reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person; provided, however,
none of such terms and requirements shall either (i) both (A) constitute a
"significant modification" effecting an exchange or reissuance of such Mortgage
Loan under the REMIC Provisions and (B) cause any REMIC to fail to qualify as a
REMIC under the Code, or (subject to Section 11.01(f) of the Indenture), result
in the imposition of any tax on "prohibited transactions" or (ii) constitute
"contributions" after the start-up date under the REMIC Provisions. The Servicer
shall execute and deliver such documents only if it reasonably determines that
(i) its execution and delivery thereof will not conflict with or violate any
terms of this Agreement or cause the unpaid balance and interest on the Mortgage
Loan to be uncollectible in whole or in part, (ii) any required consents of
insurers under any Required Insurance Policies have been obtained and (iii)
subsequent to the closing of the transaction involving the assumption or
transfer (A) such transaction will not adversely affect the coverage under any
Required Insurance Policies, (B) the Mortgage Loan will fully amortize over the
remaining term thereof, (C) no material term of the Mortgage Loan (including the
interest rate on the Mortgage Loan) will be altered nor will the term of the
Mortgage Loan be changed and (D) if the seller/transferor of the Mortgaged
Property is to be released from liability on the Mortgage Loan, such release
will not (based on the Servicer's or Subservicer's good faith determination)
adversely affect the collectability of the Mortgage Loan. Upon receipt of
appropriate instructions from the Servicer in accordance with the foregoing, the
Indenture Trustee shall execute any necessary instruments for such assumption or
substitution of liability as directed in writing by the Servicer. Upon the
closing of the transactions contemplated by such documents, the Servicer shall
cause the originals or true and correct copies of the assumption agreement, the
release (if any), or the modification or supplement to the Mortgage Note or
Mortgage to be delivered to the Indenture Trustee or the Custodian and deposited
with the Mortgage File for such Mortgage Loan. Any fee collected by the Servicer
or such related Subservicer for entering into an assumption or substitution of
liability agreement will be retained by the Servicer or such Subservicer as
additional servicing compensation.
ARTICLE IV
Servicing Certificate
Section 4.01 Statements to Securityholders.
(a) With respect to each Payment Date, on the Business Day following the
related Determination Date, the Servicer shall forward the Servicing
Certificate and a computer file containing mutually agreed upon loan
level information to the Indenture Trustee, and the Indenture Trustee,
pursuant to Section 3.26 of the Indenture, shall make the Servicing
Certificate available to each Certificateholder, each Noteholder, the
Depositor, the Owner Trustee, the Certificate Paying Agent and each
Rating Agency, with a copy to the Enhancer. The Servicing Certificate
shall set forth the following information as to the Notes and
Certificates, to the extent applicable:
(i) the aggregate amount of (a) Interest Collections, (b) Principal
Collections, and (c) Substitution Adjustment Amounts for such Collection
Period;
(ii) the amount of such distribution as principal to the Noteholders of each
Class of Notes;
(iii) the amount of such distribution as interest to the Noteholders of each
Class of Notes, the amount thereof, if any, payable in respect of
accrued and unpaid interest, Interest Carry Forward Amount:, the amount
of any accrued and unpaid interest for the related Payment Date and the
amount of any Interest Carry Forward Amount for the related Payment
Date;
(iv) the Insured Amount, if any, for such Payment Date and the aggregate
amount of prior draws on the Policy thereunder not yet reimbursed;
(v) the amount of such distribution to the Certificateholders;
(vi) the aggregate Principal Balance of the Mortgage Loans as of the end of
the preceding Collection Period;
(vii) the number and aggregate Principal Balances of Mortgage Loans (a) as to
which the Monthly Payment is delinquent for 30-59 days, 60-89 days,
90-119 days, 120-149 days and 150-179 days, respectively, (b) the
related Mortgaged Property of which has been foreclosed upon and (c) as
to which the related Mortgaged Property has become REO Property, in each
case as of the end of the preceding Collection Period; provided,
however, that such information shall not be provided on the statements
relating to the first Payment Date;
(viii) the aggregate Liquidation Loss Amounts with respect to the related
Collection Period, the amount distributed as principal to Noteholders in
respect of Liquidation Loss Amounts (minus any Subsequent Net Recovery
Amounts) and the aggregate of the Liquidation Loss Amounts from all
Collection Periods to date expressed as dollar amount and as a
percentage of the aggregate Cut-Off Date Principal Balances of the
Mortgage Loans;
(ix) the aggregate Note Balance of each Class of Notes and the Certificate
Balance of the Certificates after giving effect to the distribution of
principal on such Payment Date;
(x) the amount on deposit in each of the Pre-Funding Account and Capitalized
Interest Account as of the end of the preceding Collection Period;
(xi) the Percentage Interest applicable to each of the Securities, after
application of payments made on such Payment Date;
(xii) the Overcollateralization Amount as of the end of the preceding
Collection Period;
(xiii) the weighted average of the Net Loan Rates for the Mortgage Loans for
the related Collection Period;
(xiv) the number and aggregate Principal Balance of Mortgage Loans repurchased
pursuant to Section 3.15 herein during such Collection Period;
(xv) Net Liquidation Proceeds, net of any related Foreclosure Profit, for
such Collection Period;
(xvi) the aggregate Subsequent Net Recovery Amounts for such Collection
Period; and
(xvii) the aggregate Principal Balance of Subsequent Mortgage Loans transferred
to the Trust Estate.
In the case of information furnished pursuant to clauses (ii) and (iii)
above, the amounts shall be expressed as an aggregate dollar amount per Note, as
applicable, with a $25,000 denomination and per Certificate with a denomination
equal to a 100% Percentage Interest. In the case of information furnished
pursuant to clause (iii) above for the Class A-IO Notes, the amount shall be
expressed as an aggregate dollar amount with a $1,000,000 denomination.
If a Servicing Default shall occur, on the Business Day following the
related Determination Date, the Servicer shall forward to the Indenture Trustee,
and the Indenture Trustee, pursuant to Section 3.26 of the Indenture, shall
forward or cause to be forwarded by mail to each Certificateholder, each
Noteholder, the Enhancer, the Depositor, the Owner Trustee, the Certificate
Paying Agent and each Rating Agency, a statement to such effect, including the
nature of such Servicing Default. Such statement may be included in, or separate
from, the regular statement sent to Securityholders.
The Indenture Trustee will make the monthly statement to Securityholders
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Securityholders, and other parties
to this Agreement via the Indenture Trustee's internet website. The Indenture
Trustee's internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇."
Assistance in using the website can be obtained by calling the Indenture
Trustee's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to
use the above distribution options are entitled to have a paper copy mailed to
them via first class mail by calling the customer service desk and indicating
such. The Indenture Trustee shall have the right to change the way the
statements to Securityholders are distributed in order to make such distribution
more convenient and/or more accessible to the above parties and the Indenture
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes.
(b) The Servicer shall forward to the Indenture Trustee any other information
reasonably requested by the Indenture Trustee necessary to make distributions
pursuant to Section 3.05 of the Indenture. Prior to the close of business on the
Business Day next succeeding each Determination Date, the Servicer shall furnish
a written statement to the Certificate Paying Agent and the Indenture Trustee
setting forth the aggregate amounts required to be withdrawn from the Custodial
Account and deposited into the Note Payment Account and/or Distribution Account
on the Business Day preceding the related Payment Date pursuant to Section 3.03.
The determination by the Servicer of such amounts shall, in the absence of
obvious error, be deemed to be presumptively correct for all purposes hereunder,
and the Owner Trustee and the Indenture Trustee shall be protected in relying
upon the same without any independent check or verification. In addition, upon
the Issuer's written request, the Servicer shall promptly furnish such
information reasonably requested by the Issuer that is reasonably available to
the Servicer to enable the Issuer to perform its federal and state income tax
reporting obligations.
Section 4.02 Tax Returns and 1934 Act Reports
(a) The Servicer will act as the Tax Matters Partner pursuant to the
Trust Agreement and the Indenture and will perform the obligations of the
Servicer set forth in Section 8.02 of the Trust Agreement and the obligations of
the Tax Matters Partner set forth in Article XI of the Indenture.
(b) The Servicer shall, on behalf of the Depositor and in respect of the
Trust Fund, prepare and cause to be filed with the Commission and the Servicer
shall execute or cause to be executed any periodic reports required to be filed
under the provisions of the Exchange Act, and the rules and regulations of the
Commission thereunder. In connection with the preparation and filing of such
periodic reports, the Indenture Trustee shall timely provide to the Servicer (I)
a list of Noteholders as shown on the Note Register as of the end of each
calendar year, (II) copies of all pleadings, other legal process and any other
documents relating to any claims, charges or complaints involving the Indenture
Trustee, as trustee, or the Trust Estate that are received by the Indenture
Trustee, (III) notice of all matters that, to the actual knowledge of a
Responsible Officer of the Indenture Trustee, have been submitted to a vote of
the Noteholders or Certificateholders, other than those matters that have been
submitted to a vote of the Noteholders or Certificateholders at the request of
the Depositor or the Servicer, and (IV) notice of any failure of the Indenture
Trustee to make any distribution to the Noteholders or Certificateholders as
required pursuant to the Indenture or Trust Agreement, as applicable. Neither
the Indenture Trustee nor the Servicer shall have any liability with respect to
the Indenture Trustee's failure to properly prepare or file, or the Servicer's
failure to execute or cause to be executed, such periodic reports resulting from
or relating to the Indenture Trustee's or the Servicer's, as the case may be,
inability or failure to maintain or obtain any information not resulting from
the Indenture Trustee's or the Servicer's, as the case may be, own negligence or
willful misconduct. Any Form 10-K filed with the Commission in connection with
this Section 4.02 shall include a certification, signed by the senior officer in
charge of the servicing functions of the Servicer, in the form attached as
Exhibit D-1 hereto or such other form as may be required or permitted by the
Commission (the "Form 10-K Certification"), in compliance with Rule 13a-14 and
15d-14 under the Exchange Act and any additional directives of the Commission.
In connection with the Form 10-K Certification, the Indenture Trustee shall
provide the Servicer with a back-up certification substantially in the form
attached hereto as Exhibit D-2.
(c) The Servicer shall prepare all reports on behalf of the Trust
Estate, including, but not limited to, all Forms 8-K, Forms 10-K and, when
applicable, a Form 15 that are required under the Securities Exchange Act of
1934, as amended. The Servicer shall continue to file all Forms 8-K and Forms
10-K with respect to the Trust Estate until directed by the Depositor in writing
to discontinue such filings.
ARTICLE V
Note Payment Account
Section 5.01 Note Payment Account. The Indenture Trustee shall establish and
maintain an Eligible Account entitled "▇▇▇▇▇ Fargo Bank, N.A., as Indenture
Trustee, for the benefit of the Securityholders, the Certificate Paying Agent
and the Enhancer, pursuant to the Indenture, dated as of November 30, 2004,
between GMACM Home Equity Loan Trust 2004-HE5 and ▇▇▇▇▇ Fargo Bank, N.A." (the
"Note Payment Account"). On each Payment Date, amounts on deposit in the Note
Payment Account shall be distributed by the Indenture Trustee in accordance with
Section 3.05 of the Indenture. The Indenture Trustee shall invest or cause the
institution maintaining the Note Payment Account to invest the funds therein in
Permitted Investments selected in writing by the Servicer and designated in the
name of the Indenture Trustee, which investments shall mature not later than the
Business Day next preceding the Payment Date next following the date of such
investment (except that any investment in the institution with which the Note
Payment Account is maintained may mature on such Payment Date) and shall not be
sold or disposed of prior to maturity. In addition, no such Permitted Investment
shall be purchased at a price in excess of par. All income and gain realized
from any such investment shall be for the benefit of the Servicer and shall be
subject to its withdrawal or order from time to time. The amount of any losses
incurred in respect of any such investments shall be deposited in the Note
Payment Account by the Servicer out of its own funds immediately as realized.
ARTICLE VI
The Servicer
Section 6.01 Liability of the Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Servicer herein.
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of,
the Servicer. Any corporation into which the Servicer may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Servicer shall be a party, or
any corporation succeeding to the business of the Servicer, shall be the
successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
The Servicer may assign its rights and delegate its duties and
obligations under this Agreement; provided, that the Person accepting such
assignment or delegation shall be a Person qualified to service mortgage loans,
is reasonably satisfactory to the Enhancer (provided, that such consent to
assignment may not be unreasonably withheld), is willing to service the Mortgage
Loans and executes and delivers to the Issuer (with a copy to the Enhancer) an
agreement, in form and substance reasonably satisfactory to the Enhancer, that
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Servicer under this Agreement; and provided further, that no Rating Event will
occur as a result of such assignment and delegation (as evidenced by a letter to
such effect from each Rating Agency), if determined without regard to the
Policy; and provided further, that the Owner Trustee shall receive an Opinion of
Counsel to the effect that such assignment or delegation will not cause the
Issuer to be treated as an association (or a publicly-traded partnership)
taxable as a corporation for federal income tax purposes..
Section 6.03 Limitation on Liability of the Servicer and Others. Neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be under any liability to the Issuer, the Owner Trustee, the
Indenture Trustee or the Securityholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement;
provided, however, that this provision shall not protect the Servicer or any
such Person against any liability that would otherwise be imposed by reason of
its willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder or by reason of its reckless disregard of its obligations and
duties hereunder. The Servicer and any director or officer or employee or agent
of the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Servicer and any director, officer, employee or agent of the
Servicer shall be indemnified by the Issuer and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Securities, including any amount paid to the Owner Trustee
or the Indenture Trustee pursuant to Section 6.06(b), other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of its willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder or by reason of its reckless disregard of
its obligations and duties hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may in its sole discretion undertake any
such action that it may deem necessary or desirable in respect of this
Agreement, the rights and duties of the parties hereto and the interests of the
Securityholders. In such event, the reasonable legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Issuer, and the Servicer shall be entitled to be reimbursed
therefor. The Servicer's right to indemnity or reimbursement pursuant to this
Section 6.03 shall survive any resignation or termination of the Servicer
pursuant to Section 6.04 or 7.01 with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination).
Section 6.04 Servicer Not to Resign. Subject to the provisions of Section 6.02,
the Servicer shall not resign from the obligations and duties hereby imposed on
it except (a) upon determination that the performance of its obligations or
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it or its subsidiaries or Affiliates, the other activities of the Servicer
so causing such a conflict being of a type and nature carried on by the Servicer
or its subsidiaries or Affiliates at the date of this Agreement or (b) upon
satisfaction of the following conditions: (i) the Servicer shall have proposed a
successor servicer to the Issuer, the Indenture Trustee and the Enhancer in
writing and such proposed successor servicer is reasonably acceptable to the
Issuer, the Indenture Trustee and the Enhancer; (ii) each Rating Agency shall
have delivered a letter to the Issuer, the Enhancer and the Indenture Trustee
prior to the appointment of the successor Servicer stating that the proposed
appointment of such successor Servicer as Servicer hereunder will not cause a
Rating Event, if determined without regard to the Policy; and (iii) such
proposed successor Servicer is reasonably acceptable to the Enhancer, as
evidenced by a letter to the Issuer and the Indenture Trustee, provided,
however, that no such resignation by the Servicer shall become effective until
such successor servicer or, in the case of (a) above, the Indenture Trustee, as
pledgee of the Mortgage Loans, shall have assumed the Servicer's
responsibilities and obligations hereunder or the Indenture Trustee, as pledgee
of the Mortgage Loans, shall have designated a successor servicer in accordance
with Section 7.02. Any such resignation shall not relieve the Servicer of
responsibility for any of the obligations specified in Sections 7.01 and 7.02 as
obligations that survive the resignation or termination of the Servicer. Any
such determination permitting the resignation of the Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Indenture Trustee and
the Enhancer.
Section 6.05 Delegation of Duties. In the ordinary course of business, the
Servicer at any time may delegate any of its duties hereunder to any Person,
including any of its Affiliates, that agrees to conduct such duties in
accordance with standards comparable to those with which the Servicer complies
pursuant to Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04.
Section 6.06 Payment of Indenture Trustee's and Owner Trustee's Fees and
Expenses; Indemnification.
(a) After the Closing Date, the Servicer covenants and agrees to pay to the
Owner Trustee, the Indenture Trustee and any co-trustee of the Indenture
Trustee or the Owner Trustee from time to time, and the Owner Trustee,
the Indenture Trustee and any such co-trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust and,
in the case of the Indenture Trustee, for so long as GMACM is the
Servicer shall be as set forth in the letter agreement between the
Indenture Trustee and the Servicer dated as of November 30, 2004) for
all services rendered by each of them in the execution of the trusts
created under the Trust Agreement and the Indenture and in the exercise
and performance of any of the powers and duties under the Trust
Agreement or the Indenture, as the case may be, of the Owner Trustee,
the Indenture Trustee and any co-trustee, and the Servicer will pay or
reimburse the Indenture Trustee and any co-trustee upon request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee or any co-trustee in accordance with any of the
provisions of this Agreement, the Indenture or the Trust Agreement
except any such expense, disbursement or advance as may arise from its
negligence, willful misfeasance or bad faith. In addition, the Indenture
Trustee shall be entitled to be reimbursed from the Servicer for all
reasonable costs associated with the transfer of servicing from the
predecessor servicer pursuant to Section 7.02 hereunder, including,
without limitation, any reasonable costs or expenses associated with the
complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the
Indenture Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Indenture Trustee to service
the Mortgage Loans properly and effectively.
(b) The Servicer agrees to indemnify the Indenture Trustee and the Owner
Trustee for, and to hold the Indenture Trustee and the Owner Trustee, as
the case may be, harmless against, any loss, liability or expense
incurred without negligence, bad faith or willful misconduct on the part
of the Indenture Trustee or the Owner Trustee, as the case may be,
arising out of, or in connection with, the acceptance and administration
of the Issuer and the assets thereof, including the costs and expenses
(including reasonable legal fees and expenses) of defending the
Indenture Trustee or the Owner Trustee, as the case may be, against any
claim in connection with the exercise or performance of any of its
powers or duties under any Basic Document; provided that:
(i) with respect to any such claim, the Indenture Trustee or Owner Trustee,
as the case may be, shall have given the Servicer written notice thereof
promptly after the Indenture Trustee or Owner Trustee, as the case may
be, shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Issuer, the
Indenture Trustee or Owner Trustee, as the case may be, shall cooperate
and consult fully with the Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicer
shall not be liable for settlement of any claim by the Indenture Trustee
or the Owner Trustee, as the case may be, entered into without the prior
consent of the Servicer.
No termination of this Agreement or resignation or removal of the Indenture
Trustee shall affect the obligations created by this Section 6.06 of the
Servicer to indemnify the Indenture Trustee and the Owner Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Servicer in this Section 6.06(b) shall not pertain to any loss, liability or
expense of the Indenture Trustee or the Owner Trustee, including the costs and
expenses of defending itself against any claim, incurred in connection with any
actions taken by the Indenture Trustee or the Owner Trustee at the direction of
the Noteholders or Certificateholders, as the case may be, pursuant to the terms
of this Agreement.
ARTICLE VII
Default
Section 7.01 Servicing Default.
(a) If a Servicing Default shall occur and be continuing, then, and in every
such case, so long as a Servicing Default shall not have been remedied by the
Servicer, either the Issuer or the Indenture Trustee, upon actual knowledge of
the occurrence of a Servicing Default and with the consent of the Enhancer (so
long as no Enhancer Default exists), or the Enhancer, by notice then given in
writing to the Servicer, the Issuer and the Indenture Trustee, may terminate all
of the rights and obligations of the Servicer as servicer under this Agreement
other than its right to receive servicing compensation and expenses for
servicing the Mortgage Loans hereunder during any period prior to the date of
such termination, and the Enhancer or the Issuer or the Indenture Trustee with
the consent of the Enhancer (so long as no Enhancer Default exists), may
exercise any and all other remedies available at law or equity. Any such notice
to the Servicer shall also be given to each Rating Agency, the Enhancer and the
Issuer. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Securities or the Mortgage Loans or otherwise, shall pass to and be
vested in the Indenture Trustee, subject to Section 7.02 hereof, as pledgee of
the Mortgage Loans, pursuant to and under this Section 7.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of each Mortgage
Loan and related documents, or otherwise. The Servicer agrees to cooperate with
the Issuer, the Enhancer and Indenture Trustee, as the case may be, in effecting
the termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the transfer to the Indenture Trustee for the
administration by it of all cash amounts relating to the Mortgage Loans that
shall at the time be held by the Servicer and to be deposited by it in the
Custodial Account, or that have been deposited by the Servicer in the Custodial
Account or thereafter received by the Servicer with respect to the Mortgage
Loans, the recordation of Assignments of Mortgages to the Indenture Trustee if
MERS is not the mortgagee of a Mortgage Loan, and the delivery of the Mortgage
Files in its possession to the Indenture Trustee. All reasonable costs and
expenses (including, but not limited to, attorneys' fees) incurred in connection
with amending this Agreement to reflect such succession as Servicer pursuant to
this Section 7.01 shall be paid by the predecessor Servicer (or if the
predecessor Servicer is the Indenture Trustee, the initial Servicer) upon
presentation of reasonable documentation of such costs and expenses.
(b) Notwithstanding any termination of the activities of the Servicer hereunder,
the Servicer shall be entitled to receive, out of any late collection of a
payment on a Mortgage Loan which was due prior to the notice terminating the
Servicer's rights and obligations hereunder and received after such notice, that
portion to which the Servicer would have been entitled pursuant to Sections 3.03
and 3.09 as well as its Servicing Fee in respect thereof, and any other amounts
payable to the Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Notwithstanding the foregoing, a delay in or failure of performance
under clause (i) or (ii) of the definition of Servicing Default, after the
applicable grace periods specified therein, shall not constitute a Servicing
Default if such delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure was caused by an
act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding sentence shall
not relieve the Servicer from using reasonable efforts to perform its respective
obligations in a timely manner in accordance with the terms of this Agreement.
The Servicer shall provide the Indenture Trustee, the Enhancer and the
Securityholders with notice of any such failure or delay by it, together with a
description of its efforts to so perform its obligations. The Servicer shall
immediately notify the Indenture Trustee, the Enhancer and the Issuer in writing
of any Servicing Default..
Section 7.02 Indenture Trustee to Act; Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination pursuant
to Section 7.01 or sends a notice pursuant to Section 6.04, the Indenture
Trustee as pledgee of the Mortgage Loans shall itself become, or shall appoint
an affiliate of the Indenture Trustee to become the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall immediately assume all
of the obligations of the Servicer to make advances on Mortgage Loans under
Section 3.02(b) and will be subject to all other responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof as soon as practicable, but in no event later than 90 days after the
Indenture Trustee becomes successor servicer. During such 90 day period, the
Indenture Trustee, with the consent of the Enhancer, may require the Servicer
being terminated to continue to perform such servicing responsibilities (other
than making advances on the Mortgage Loans under Section 3.02(b)) as the
Indenture Trustee deems appropriate. In such event, the Servicer being
terminated shall provide such services as directed by the Indenture Trustee
until the earliest of the date the Indenture Trustee notifies such Servicer to
discontinue providing such services, the date on which a successor servicer or
the Indenture Trustee has assumed all responsibilities, duties and liabilities
of the Servicer hereunder or the expiration of the 90 day period. The Servicer
shall be entitled to the Servicing Fee hereunder for any period during which the
Servicer is obligated to provide such services as if no termination of the
Servicer had occurred. Nothing in this Agreement or in the Trust Agreement shall
be construed to permit or require the Indenture Trustee to (i) succeed to the
responsibilities, duties and liabilities of the initial Servicer in its capacity
as Seller under the Purchase Agreement, (ii) be responsible or accountable for
any act or omission of the Servicer prior to the issuance of a notice of
termination hereunder, (iii) require or obligate the Indenture Trustee, in its
capacity as successor Servicer, to purchase, repurchase or substitute any
Mortgage Loan, (iv) fund any losses on any Permitted Investment directed by any
other Servicer, or (v) be responsible for the representations and warranties of
the Servicer. As compensation therefor, the Indenture Trustee shall be entitled
to such compensation as the Servicer would have been entitled to hereunder if no
such notice of termination had been given. Notwithstanding the foregoing, if the
Indenture Trustee is (x) unwilling to act as successor Servicer itself or to
appoint an affiliate to become successor Servicer, or (y) legally unable so to
act, the Indenture Trustee as pledgee of the Mortgage Loans may (in the
situation described in clause (x)) or shall (in the situation described in
clause (y)) appoint or petition a court of competent jurisdiction to appoint any
established housing and home finance institution, bank or other mortgage loan
servicer having a net worth of not less than $10,000,000 as the successor to the
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Servicer hereunder; provided, that any such
successor Servicer shall be acceptable to the Enhancer, as evidenced by the
Enhancer's prior written consent, which consent shall not be unreasonably
withheld; and provided further, that the appointment of any such successor
Servicer will not result in a Rating Event, if determined without regard to the
Policy. Pending appointment of a successor to the Servicer hereunder, unless the
Indenture Trustee is prohibited by law from so acting, the Indenture Trustee
itself shall act or appoint an affiliate to act in such capacity as provided
above. In connection with such appointment and assumption, the successor shall
be entitled to receive compensation out of payments on Mortgage Loans in an
amount equal to the compensation that the Servicer would otherwise have received
pursuant to Section 3.09 (or such other compensation as the Indenture Trustee
and such successor shall agree). The appointment of a successor Servicer shall
not affect any liability of the predecessor Servicer that may have arisen under
this Agreement prior to its termination as Servicer (including the obligation to
purchase Mortgage Loans pursuant to Section 3.01, to pay any deductible under an
insurance policy pursuant to Section 3.04 or to indemnify the Indenture Trustee
pursuant to Section 6.06), nor shall any successor Servicer be liable for any
acts or omissions of the predecessor Servicer or for any breach by such Servicer
of any of its representations or warranties contained herein or in any related
document or agreement. The Indenture Trustee and such successor shall take such
action, consistent with this Agreement and the requirements (including any
notice requirements) of applicable law, as shall be necessary to effectuate any
such succession. Notwithstanding the foregoing, the Indenture Trustee, in its
capacity as successor Servicer, shall not be responsible for the lack of
information and/or documents that it cannot obtain through reasonable efforts or
for failing to take any action that the Indenture Trustee is legally prohibited
from taking by applicable law.
(b) Any successor, including the Indenture Trustee, to the Servicer as servicer
shall during its term as Servicer (i) continue to service and administer the
Mortgage Loans for the benefit of the Securityholders, (ii) maintain in force a
policy or policies of insurance covering errors and omissions in the performance
of its obligations as Servicer hereunder and a fidelity bond in respect of its
officers, employees and agents to the same extent as the Servicer is so required
pursuant to Section 3.13 and (iii) to be bound by the provisions of the
Insurance Agreement.
(c) Any successor Servicer, including the Indenture Trustee, shall not be deemed
in default or to have breached its duties hereunder if the predecessor Servicer
shall fail to deliver any required deposit to the Custodial Account or otherwise
cooperate with any required servicing transfer or succession hereunder.
(d) In connection with the termination or resignation of the Servicer hereunder,
either (i) the successor Servicer, including the Indenture Trustee if the
Indenture Trustee is acting as successor Servicer, shall represent and warrant
that it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, in which case the
predecessor Servicer shall cooperate with the successor Servicer in causing MERS
to revise its records to reflect the transfer of servicing to the successor
Servicer as necessary under MERS' rules and regulations, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to execute
and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Indenture Trustee and to execute and deliver such
other notices, documents and other instruments as may be necessary or desirable
to effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan on
the MERS(R) System to the successor Servicer. The predecessor Servicer shall
file or cause to be filed any such assignment in the appropriate recording
office. The predecessor Servicer shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this subsection (d). The
successor Servicer shall cause such assignment to be delivered to the Indenture
Trustee or the Custodian promptly upon receipt of the original with evidence of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Section 7.03 Notification to Securityholders. Upon any termination of or
appointment of a successor to the Servicer pursuant to this Article VII or
Section 6.04, the Indenture Trustee shall give prompt written notice thereof to
the Securityholders, the Issuer, the Enhancer and each Rating Agency.
ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Amendment. This Agreement may be amended from time to time by the
parties hereto; provided, that any such amendment shall be accompanied by a
letter from each Rating Agency to the effect that such amendment will not result
in a Rating Event and a tax opinion to the effect that neither such amendment
nor any action permitted by such amendment and not otherwise permitted by this
Agreement will cause any REMIC to fail to qualify as a REMIC or give rise to the
imposition of a tax on "prohibited transactions" of a REMIC, or prohibited
contributions to a REMIC, on any REMIC; and provided, further, that the Enhancer
and the Indenture Trustee shall consent thereto.
Section 8.02 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.03 Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by certified mail, return receipt requested, to (a) in the case of
the Servicer, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇, in the case of the Enhancer, Financial Guaranty Insurance Company, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Research and Risk
Management (GMACM Home Loan Trust 2004-HE5, (c) in the case of ▇▇▇▇▇'▇, Home
Mortgage Loan Monitoring Group, 4th Floor, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (d) in the case of Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Residential Mortgage Surveillance Group, (e) in the case of
the Owner Trustee, Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (f) in the case of the Issuer,
GMACM Home Equity Loan Trust 2004-HE5, c/o the Owner Trustee at the address set
forth in clause (e) above, and (g) in the case of the Indenture Trustee, at the
Corporate Trust Office of the Indenture Trustee; or, with respect to each of the
foregoing Persons, at such other address as shall be designated by such Person
in a written notice to the other foregoing Persons. Any notice required or
permitted to be mailed to a Securityholder shall be given by first class mail,
postage prepaid, at the address of such Securityholder as shown in the Note
Register or Certificate Register, as the case may be. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the related Securityholder receives such
notice. Any notice or other document required to be delivered or mailed by the
Indenture Trustee to any Rating Agency shall be given on a reasonable efforts
basis and only as a matter of courtesy and accommodation, and the Indenture
Trustee shall have no liability for failure to deliver any such notice or
document to any Rating Agency.
Section 8.04 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the Securities or
the rights of the Securityholders.
Section 8.05 Third-Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, the Securityholders, the
Enhancer, the Owner Trustee and their respective successors and permitted
assigns. Except as otherwise provided in this Agreement, no other Person shall
have any right or obligation hereunder.
Section 8.06 Counterparts. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 8.07 Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of All
Mortgage Loans; Partial Redemption.
(a) The respective obligations and responsibilities of the Servicer, the
Issuer and the Indenture Trustee created hereby shall terminate upon the
last action required to be taken by the Issuer pursuant to the Trust
Agreement and by the Indenture Trustee pursuant to the Indenture
following the earlier of:
(i) the date on or before which the Indenture or the Trust Agreement is
terminated, or
(ii) the purchase by the Servicer from the Issuer of all Mortgage Loans and
REO Property in accordance with Section 8.08(b).
(b) The Servicer shall have the right to purchase from the Issuer all of the
Mortgage Loans and related REO Property if the aggregate Note Balance of
the Notes as of any Payment Date is less than 10% of the aggregate Note
Balance of the Notes as of the Closing Date (provided that a draw on the
Policy would not occur as a result of such purchase and provided further
that the purchase price will provide sufficient funds to pay the
outstanding Note Balance and accrued and unpaid interest on the Notes to
the Payment Date on which such amounts are to be distributed to the
Securityholders), at a price equal to 100% of the aggregate unpaid
Principal Balance of all such remaining Mortgage Loans, plus accrued and
unpaid interest thereon at the weighted average of the Loan Rates
thereon up to the date preceding the Payment Date on which such amounts
are to be distributed to the Securityholders (and in the case of REO
Property, the fair market value of the REO Property), plus any amounts
due and owing to the Enhancer under the Insurance Agreement related to
the Mortgage Loans or the Notes (and any unpaid Servicing Fee relating
to the Mortgage Loans shall be deemed to have been paid at such time).
The Servicer shall send written notice to the Enhancer of its intent to
exercise its right to purchase any of the Mortgage Loans pursuant to this
Section 8.08(b).
If such right is exercised by the Servicer, the Servicer shall deposit
the amount calculated pursuant to this Section 8.08(b) with the Indenture
Trustee pursuant to Section 4.10 of the Indenture and, upon the receipt of such
deposit, the Indenture Trustee or Custodian shall release to the Servicer, the
files pertaining to the Mortgage Loans being purchased. The Servicer, at its
expense, shall prepare and deliver to the Indenture Trustee for execution, at
the time the related Mortgage Loans are to be released to the Servicer,
appropriate documents assigning each such Mortgage Loans from the Indenture
Trustee or the Issuer to the Servicer or the appropriate party.
Section 8.09 Certain Matters Affecting the Indenture Trustee. For all purposes
of this Agreement, in the performance of any of its duties or in the exercise of
any of its powers hereunder, the Indenture Trustee shall be subject to and
entitled to the benefits of Article VI of the Indenture.
Section 8.10 Owner Trustee Not Liable for Related Documents. The recitals
contained herein shall be taken as the statements of the Servicer, and the Owner
Trustee and the Indenture Trustee assume no responsibility for the correctness
thereof. The Owner Trustee and the Indenture Trustee make no representations as
to the validity or sufficiency of this Agreement, of any Basic Document or
Related Document, or of the Certificates (other than the signatures of the Owner
Trustee and the Indenture Trustee on the Certificates) or the Notes. The Owner
Trustee and the Indenture Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under the Trust
Agreement or the Noteholders under the Indenture, including the compliance by
the Depositor, the Sellers or the Servicer with any warranty or representation
made under any Basic Document or the accuracy of any such warranty or
representation, or any action of any person taken in the name of the Owner
Trustee or the Indenture Trustee.
[Signature Page Follows]
IN WITNESS WHEREOF, the Servicer, the Issuer and the Indenture Trustee
have caused this Agreement to be duly executed by their respective officers or
representatives all as of the day and year first above written.
GMAC MORTGAGE CORPORATION,
as Servicer
By:
Name:
Title:
GMACM HOME EQUITY LOAN TRUST 2004-HE5, as
Issuer
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By:
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
as Indenture Trustee
By:
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[TO BE PROVIDED UPON REQUEST]
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PREMISES:
That ▇▇▇▇▇ Fargo Bank, N.A., as indenture trustee (the "Indenture
Trustee"), under the indenture dated as of November 30, 2004 (the "Indenture"),
between GMACM Home Equity Loan Trust 2004-HE5, as issuer and the Indenture
Trustee, a national banking association organized and existing under the laws of
the United States of America, and having its principal office located at [ ],
hath made, constituted and appointed, and does by these presents make,
constitute and appoint GMAC Mortgage Corporation, a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, its true and lawful
Attorney-in-Fact, with full power and authority to sign, execute, acknowledge,
deliver, file for record, and record any instrument on its behalf and to perform
such other act or acts as may be customarily and reasonably necessary and
appropriate to effectuate the following enumerated transactions in respect of
any of the Mortgages securing a Mortgage Loan and the related Mortgage Notes for
which the undersigned is acting as Indenture Trustee for various Securityholders
(whether the undersigned is named therein as mortgagee or beneficiary or has
become mortgagee by virtue of endorsement of such Mortgage Note secured by any
such Mortgage) and for which GMAC Mortgage Corporation is acting as Servicer
pursuant to a Servicing Agreement dated as of November 30, 2004 (the "Servicing
Agreement").
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage, where said modification
or re-recording is for the purpose of correcting the Mortgage to conform
same to the original intent of the parties thereto or to correct title
errors discovered after such title insurance was issued and said
modification or re-recording, in either instance, does not adversely
affect the Lien of the Mortgage as insured.
2. The subordination of the Lien of a Mortgage to an easement in favor of a
public utility company or a government agency or unit with powers of
eminent domain; this Section shall include, without limitation, the
execution of partial satisfactions/releases, partial reconveyances or
the execution of requests to trustees to accomplish same.
3. With respect to a Mortgage, the foreclosure, the taking of a deed in
lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such
foreclosure, including, without limitation, any and all of the following
acts:
a. The substitution of trustee(s) serving under a Mortgage, in
accordance with state law and the Mortgage;
b. Statements of breach or non-performance;
c. Notices of default;
d. Cancellations/rescissions of notices of default and/or notices of
sale;
e. The taking of a deed in lieu of foreclosure; and
f. Such other documents and actions as may be necessary under the
terms of the Mortgage or state law to expeditiously complete said
transactions.
4. The conveyance of the properties to the mortgage insurer, or the closing
of the title to the property to be acquired as real estate owned, or
conveyance of title to real estate owned.
5. The completion of loan assumption agreements.
6. The full satisfaction/release of a Mortgage or full reconveyance upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Mortgage Note.
7. The assignment of any Mortgage and the related Mortgage Note, in
connection with the repurchase of the Mortgage Loan secured and
evidenced thereby.
8. The full assignment of a Mortgage upon payment and discharge of all sums
secured thereby in conjunction with the refinancing thereof, including,
without limitation, the endorsement of the related Mortgage Note.
9. The modification or re-recording of a Mortgage, where said modification
or re-recording is for the purpose of any modification pursuant to
Section 3.01 of the Servicing Agreement.
10. The subordination of the Lien of a Mortgage, where said subordination is
in connection with any modification pursuant to Section 3.01 of the
Servicing Agreement, and the execution of partial satisfactions/releases
in connection with such same Section 3.01.
The undersigned gives said Attorney-in-Fact full power and authority to
execute such instruments and to do and perform all and every act and thing
necessary and proper to carry into effect the power or powers granted by or
under this Limited Power of Attorney as fully as the undersigned might or could
do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall
lawfully do or cause to be done by authority hereof.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in Appendix A to the Indenture.
Third parties without actual notice may rely upon the exercise of the
power granted under this Limited Power of Attorney; and may be satisfied that
this Limited Power of Attorney shall continue in full force and effect has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity
but solely as Indenture Trustee
By: ___________________________________
Name:
Title:
STATE OF )
SS.
COUNTY OF )
On this day of , 2004, before me the undersigned, Notary Public of said
State, personally appeared , personally known to me to be duly authorized
officers ▇▇▇▇▇ Fargo Bank, N.A. that executed the within instrument and
personally known to me to be the persons who executed the within instrument on
behalf of ▇▇▇▇▇ Fargo Bank, N.A. therein named, and acknowledged to me such
▇▇▇▇▇ Fargo Bank, N.A executed the within instrument pursuant to its by-laws.
WITNESS my hand and official
seal.
Notary Public in and for the
State of _______________
After recording, please mail to:
Attn:
EXHIBIT C
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
Servicing Agreement Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan
Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Servicing Agreement."
GMAC Mortgage Corporation
Authorized Signature
******************************************************************************
TO CUSTODIAN: Please acknowledge this request, and check off documents being
enclosed with a copy of this form. You should retain this form for your files in
accordance with the terms of the Servicing Agreement.
Enclosed Documents: [ ] Mortgage Note
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or Deed of Trust
[ ] Title Insurance Policy
[ ] Other:
Name __________________________
Title ________________________
Date _________________________
EXHIBIT D-1
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[____], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of GMACM Home Equity Loan Trust 2004-HE5 (the "Trust"), the assets of which are
serviced pursuant to the Servicing Agreement dated November 30, 2004 (the
"Servicing Agreement") among the Trust, GMAC Mortgage Corporation (the
"Servicer") and ▇▇▇▇▇ Fargo Bank, N.A. (the "Indenture Trustee");
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by that annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Indenture Trustee by the Servicer under the Servicing Agreement
is included in these reports;
4. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon my knowledge and the
review required under the Servicing Agreement, and, except as disclosed in the
report, the Servicer has fulfilled its obligations under the Servicing
Agreement; and
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant , after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers, or
similar procedure, as set forth in the Servicing Agreement, that is included in
these reports.
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [▇▇▇▇▇ Fargo
Bank, N.A.], [ ].
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.
____________________________*
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions
of the Servicer
EXHIBIT D-2
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of ▇▇▇▇▇ Fargo Bank, N.A. (the
"Indenture Trustee") certifies that:
(a) The Indenture Trustee has performed all of the duties specifically
required to be performed by it pursuant to the provisions of the Servicing
Agreement dated as of November 30, 2004 (the "Agreement") by and among GMACM
Home Equity Loan Trust 2004-HE5, as depositor, GMAC Mortgage Corporation, as
Servicer, and the Indenture Trustee in accordance with the standards set forth
therein.
(b) Based on my knowledge, the information that is provided by the
Indenture Trustee pursuant to Section 4.02 of the Agreement is accurate as of
the last day of the 20[ ] calendar year.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of
_________, 20__.
____________________________*
Name:
Title:
